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Recently, the High Court of Australia handed down its decision on a police appeal regarding the charge of driving with a prescribed concentration of alcohol in one’s blood.

The Supreme Court and Full Court of South Australia had previously upheld a decision of the Magistrates’ Court, that by utilising the unfairness discretion a positive breath analysis test should be excluded due to the only method available in which such result could be tested, namely a blood analysis being unavailable by virtue of that blood being denatured.

Whilst the High Court accepted that the general unfairness discretion exists generally, they concluded that it should not be applicable to these circumstances.
It was determined that the obtaining of a blood test does not provide a defendant a statutory right to test a breath analysis instrument but rather provides an aid to prosecution as to proof of the breath analysis instrument.

In layman’s terms, any challenge to a breath analysis instrument can only be done by virtue of a blood test in the absence or the inability to obtain a blood test does not make the breath analysis results unreliable.

During the course of discussions, in the judgment it was suggested:

“Where the evidence that is sought to be excluded is critical to the prosecution case and the base of exclusion is said to be that admission of the evidence would render the trial unfair, the remedy lies in determining whether the circumstances justify a permanent stay and not in circumventing that enquiry by the exclusion of the evidence in the exercise of a “in general unfairness, discretion”. (paragraph 48 Judgment of Chief Justice French, Justice Kiefel, Justice Bell, Justice Gageler, Justice Keane).

Generally speaking, his stay of proceedings for an abuse of process may occur where there is an absence of the evidence, through destructions or other means, it would constitute an unacceptable risk of injustice or unfairness should the matter proceed.

In the case of drink driving matters, it is therefore envisaged that a permanent stay of proceedings could be granted where a defendant obtains a blood test that is denatured and further that there is evidence that a breath analysis reading is unreliable. This would involve police observations that one was not intoxicated and potentially defendant’s evidence regarding the alcohol that he had consumed.

It is foreshadowed that the cases in which such an abuse maybe granted is therefore rare.

The effect of the High Court decision is significant in that it deeply restricts the circumstances in which one who produces a positive result may have a defence.

Written by Casey Isaacs

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