Last week the Court of Appeal delivered its decision in Terry v Johnson & anor [2009] VSCA 286, another case dealing with discretionary exclusion from evidence of a Certificate of Analysis.

On 27 November 2003 the police pulled Mr Terry over as he was driving in Heidelberg. They took him to Heidelberg Police Station. He was breath-tested. The breath analysing instrument showed he had a blood-alcohol content of 0.127%

Mr Terry gave evidence that straight after he blew into the instrument, it seemed to have some sort of malfunction — described at [11] as “loud rasping noises like metal grinding on metal, and then I could hear what appeared to be the sound of something being crushed or crunched”.

He said he was concerned the instrument might not properly analyse his breath sample, so he asked for a blood test.

I then gave evidence that I asked Senior Constable Warr how long it would take to arrange for a blood test? He said: “It could take all night”. Senior Constable Warr then said words to the effect also that there is commonly a difference between breath and blood results anyway. I then gave evidence that I asked Senior Constable Warr: “So if I have a blood test, what difference is there between the breath and the blood readings, higher or lower?” I then gave evidence that Senior Constable Warr said in reply that: “In my experience blood is always higher”.

I then gave evidence that after Senior Constable Warr informed me that the blood test might take all night to arrange, and furthermore that the result of analysis of a blood test would be higher than the breath analysis, I felt that having a blood test would be futile and not in my best interests to undergo. I gave evidence that I felt very disappointed after being informed of the opinion of Senior Constable Warr.

Mr Terry’s evidence was accepted on these points.

Mr Terry argued that the evidence of the breath analysis ought to be excluded from evidence, relying on DPP v Moore (2003) 6 VR 430.

In Moore’s case the driver also claimed he was talked out of a breath test by the police. (In the Magistrates’ Court, the police denied discouraging Moore from asking for a blood test, but the appeal proceeded on the basis that they did.) Moore was decided on 29 July 2003 — several months before Mr Terry was interecepted.

In Moore, the Court of Appeal decided if a breath-analysis operator dissuaded or discouraged an accused from exercising their right to a blood test after a breath-test, the Certificate of Analysis could be excluded from evidence — even if a s 58(2) notice was not served.

Up till then, public-policy discretion to exclude applied to cases when the police did something illegal or inappropriate and obtained evidence as a result of that impropriety. In Moore’s case, the impropriety occurred after they obtained the the breath sample and analysis. The majority held that the Bunning v Cross public-policy discretion to exclude existed in such cases, as the misconduct was part and parcel of the obtaining of the evidence from the breathalyser.

The effect of Moore was the extend public-policy discretion to transactions after inculpatory evidence is obtained, albeit close in time and place to the transaction that obtained that evidence.

Moore only considered a charge contrary to Road Safety Act 1986 s 49(1)(b) only. Consequently, there was some (but not much, in my opinion) uncertainty it might not apply to offences contrary to s 49(1)(f). That was because the offence doesn’t necessarily require a Certificate of Analysis to prove the driver’s concentration of alcohol: Furze v Nixon (2000) 2 VR 503.

Terry v Johnson seems to resolve that possibility, holding that the Certificate of Analysis should have been excluded for an offence against s 49(1)(f).

But, because the Certificate of Analysis is not, strictly, required for that offence, is this correct? Perhaps not strictly, but I suspect in any event, a court would legitimately be entitled to exclude the sample of breath from evidence, not just the certificate.

The real concern of the Courts in cases such as these (once the factual dispute is resolved) is that many people place a lot of store in what police officers, cloaked in the mantle of authority, tell them about their legal rights and the likely results. A bit like, Obi Wan Kenobi saying, “These aren’t the droids you’re looking for…”

Just substitute that with, “You don’t need a blood test…”

When the Evidence Act 2008 commences on 1 January 2010, exclusion of this sort of evidence will probably be argued under s 138 and maybe s 135 (perhaps arguing that the procedure is unfair rather than the evidence itself).