R v Riley, Christopher

1. [1]

   BATHURST CJ: This is an appeal brought by the Director of Public Prosecutions (the Director) under s 5F(3A) of the Criminal Appeal Act 1912 (NSW) against a ruling made by her Honour Judge Baly SC (the trial judge) that evidence of an analyst, Mr Brett Fletcher and a pharmacologist, Dr Judith Perl, was inadmissible pursuant to s 138 of the Evidence Act 1995 (NSW). The Director relies on the following grounds of appeal:

Background

1. [2]

   Mr Christopher Riley (the respondent) was charged on indictment with the following offences:

2. [3]

   Tetrahydrocannabinol is the main active drug in cannabis.

3. [4]

   The facts giving rise to the charges may be summarised as follows. On 27 December 2016 the respondent, the deceased JB, with whom the respondent was in a relationship, and JB’s three year old daughter were travelling in a Toyota Hilux utility along East Coonamble Road near Gilgandra when the vehicle left the road and rolled. The three occupants were thrown from the car. JB died as a result of her injuries whilst her daughter sustained serious injuries. The respondent was taken to Gilgandra Hospital where a sample of his blood was taken. The sample was taken to the Forensic and Analytical Science Service of NSW Health Pathology (FASS). Upon analysis by Mr Fletcher, four drugs were detected in the respondent’s blood.

4. [5]

   Dr Judith Perl, a Senior Pharmacologist at the NSW Police Force Impaired Driving Research Unit determined from the blood sample that at the time of the collision the respondent was under the influence of cannabis to the extent that his driving ability would have been impaired.

5. [6]

   The Crown case against the respondent is that he was the driver, that he lost control of the vehicle prior to the impact and that the impairment resulting from the influence of cannabis was a factor in his loss of control of the vehicle.

The relevant legislation

1. [7]

   Section 52A(1) of the Crimes Act 1900 (NSW) provides that a person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle under the influence of intoxicating liquor or of a drug. Section 52A(3) provides for a similar offence in respect of dangerous driving occasioning grievous bodily harm.

2. [8]

   Section 52AA(3A) provides as follows:

3. [9]

   Part 4 of Sch 3 to the Road Transport Act 2013 (NSW) provides for the procedure to be used in taking and analysing blood samples. Clause 24 of Sch 3 so far as relevant is in the following terms:

4. [10]

   Clause 27 of Sch 3 deals with the conduct of an analysis. Clause 27(1) and cl 27(4) are of relevance. They are in the following terms:

5. [11]

   Division 4 of Pt 4 of Sch 3 provides for various offences in relation to sample handling. Of relevance are cll 28 and 29:

The procedure to be adopted using an S-Monovette blood collection tube

1. [12]

   In the present case the sample was taken by the use of an S-Monovette blood collection tube. Instructions for the use of the tube were in evidence before the trial judge in the voir dire hearing on the admissibility of the evidence. The instructions provide the following steps.

2. [13]

   The first step involves aligning the pins on the inner red S-Monovette cap with slots in the needle, pushing the S-Monovette onto the needle immediately prior to blood collection and securing by slightly twisting clockwise.

3. [14]

   The second step involves the taking of the blood. The third step involves removal of the S-Monovette tube from the needle by turning anticlockwise and pulling gently. The needle remains in the vein and then should be withdrawn from the vein and safely disposed of. The instructions emphasise that the S-Monovette should be removed first and then the needle withdrawn. The piston is then pulled back and locked into the S-Monovette base, and the plunger is broken off.

4. [15]

   Next, the outer red security cap is pushed firmly over the inner red S-Monovette cap until it “clicks” into position. The instructions warn not to try to unscrew the red security cap, or the tamper-evident ring will be broken and separated.

5. [16]

   The final step is to place the S-Monovette in a yellow capped protective container, which must be securely capped and placed into a biohazard bag.

6. [17]

   It was common ground that the outer red security cap was to protect against tampering. When the sample taken from the respondent came to be examined by Mr Fletcher the outer cap was not on the container.

The evidence on the voir dire

1. [18]

   Senior Constable Little gave evidence of the manner in which a blood sample taken at a hospital after a motor vehicle accident is stored and transported. He gave evidence that samples taken by an authorised sample taker are collected in a vial and then placed in a blue box on the wall of the hospital. He said there are two locking mechanisms on the box, the first which locks it to the wall and the keys to which are held by the officer in charge of the local police station. He said there are another set of keys which actually opens the box which are held by the Blood Sampling Unit.

2. [19]

   Senior Constable Little stated that once the sample is placed in the blue box, the local police obtain that box and place it into a grey transport box which is also padlocked. He said the keys to the grey transport box are held by the officer in charge of the police station that arranges the collection of the box, and also the Blood Sampling Unit.

3. [20]

   He described the method of placing the vial into the blue box, noting that there was a handle in the box and that the sample falls into the container and is observable through a little window at the bottom of the box.

4. [21]

   Nurse Kerry Irvin was the nurse who took the blood sample from the respondent. She made a statement to the police. The following extract from her statement is of relevance:

5. [22]

   Nurse Irvin gave evidence on the voir dire. She described the procedure she adopted in the following terms:

6. [23]

   She went on to describe the next part of the procedure as follows:

7. [24]

   She was then asked the following questions by the trial judge:

8. [25]

   She then told the Crown Prosecutor she had not been required to take a blood sample since.

9. [26]

   She was then asked these questions by reference to the instructions for use of the S-Monovette blood collection tube:

10. [27]

    Mr Fletcher, an analyst employed by FASS, gave evidence on the voir dire. He referred to a statement he made in which he said, “Blood sample tubes for traffic matters are designed to include a screw cap which contains the blood within the tube”. He identified that as the first cap which went on, being the screw top which contains the blood within the tube. He also referred to the other, larger cap which he described as “an outer, tamper-evident security cap”.

11. [28]

    Mr Fletcher said that when he received Mr Riley’s sample, cap 1 was in place but cap 2 was missing. He said, however, that if cap 1 was in place the integrity of the sample would be preserved as it was an airtight seal, so it would seal the blood safely within the tube. He said it was common that samples arrived at his laboratory missing cap 2.

12. [29]

    He stated that he had seen a situation where cap 1 was not in place but cap 2 was. He described this as problematic, because cap 2 is not an airtight seal and he would expect blood to be leaking from the tube in that scenario. He stated that this would mean that particularly something like an alcohol analysis would be compromised because it would not be contained within the tube. He said if only cap 2 was present that would have been noted in his notes.

13. [30]

    In cross-examination, Mr Fletcher agreed that when he talked about the integrity of the sample being ensured by the inner screw cap, he was talking about scientific integrity, not integrity in the sense of being tampered with. He agreed that the inner screw cap can be removed and put back on the vial. He said he would not be able to detect whether that had occurred.

14. [31]

    He also agreed that he could not say anything else as to the integrity of the process prior to the arrival of the sample in his laboratory.

15. [32]

    He confirmed that the notation on his certificate that the sample was not sealed on arrival referred to the fact that the security cap was missing.

The relevant provisions of the Criminal Appeal Act and the Evidence Act

1. [33]

   To better understand the judgment of the trial judge on the voir dire and the submissions it is convenient to set out the provisions of s 5F of the Criminal Appeal Act and s 138 of the Evidence Act. Section 5F is in the following terms:

2. [34]

   Section 138 of the Evidence Act so far as relevant provides as follows:

The judgment on the voir dire

1. [35]

   The trial judge stated that the determination of the objection to the evidence came down to a reasonably simple question: Has the Crown proven that the sample received at FASS was sealed in accordance with what is required under the legislation? She stated there was a further question as to whether the Crown could prove that the sample was not tampered with. She stated that there was no requirement that the defence prove that the sample was tampered with. She stated that the onus of proof was important in this case.

2. [36]

   It should be noted that in framing the question in this way, her Honour erred in relation to the onus of proof. It was correctly accepted on the appeal that the respondent bore the onus of proving illegality or impropriety, but that once that onus was satisfied the onus fell upon the Crown to establish that the evidence should be admitted pursuant to s 138 of the Evidence Act.

3. [37]

   Her Honour noted that it was the requirement in cl 24 of Sch 3 of the Road Transport Act to seal the sample that was said to have been breached in this case.

4. [38]

   Her Honour referred to the evidence of Nurse Irvin and her use of the S-Monovette blood collection tube to which I have referred above. She stated that her evidence to which I have referred at [26] above was extremely important. She stated that it might be surprising that Nurse Irvin had actual memory of what occurred, but that the Crown did not suggest that she reconstructed her account.

5. [39]

   The trial judge also referred to the evidence of Senior Constable Little concerning the chain of custody of the sample. She stated that it was common ground that the Crown could not say definitively where the blood sample was, between when it was placed in the blue box on 27 December, until it was received at the police station on 2 or 3 January. She stated that conclusion was based on the evidence that the Crown could not show who, or how, or precisely when the box came to arrive at the Gilgandra Police Station, except that it was taken there between 27 December and 2 January, when it was found to be at the police station.

6. [40]

   The trial judge noted that the Crown was able to prove that once the sample arrived at the Gilgandra Police Station it was collected by a Toll courier, transported and arrived at the Blood Sampling Unit on 5 January. She accepted that the sample was removed from the blood box and placed in a locked refrigerator. She stated that on 11 January, the sample was removed from the refrigerator and taken to the analytical laboratory at Lidcombe, and that the various witnesses who took the sample from Gilgandra Police Station to FASS in Lidcombe attested to the lack of opportunity for tampering at that stage.

7. [41]

   The trial judge noted that a Ms Angela Lim of FASS received the sample on 11 January and placed it into a locked refrigerator. Ms Lim noted on the delivery certificate the letters “NC”, signifying “no cap”.

8. [42]

   The trial judge also referred to the evidence of Mr Fletcher to which I have referred above and to the following evidence from Dr Perl concerning the significance of the second cap. This evidence was in the following terms:

9. [43]

   The trial judge noted that it was a mystery as to how the seal which Nurse Irvin said she affixed came to be off. However, she said that even if she did not accept the evidence of Nurse Irvin and found she did not put the outer cap on, it would “still leave a problem that the Crown cannot answer”. In that context, she noted that for a week over the New Year period the Crown was effectively unable to account for the sample, and there was no evidence that the outer cap was found loose in the blue box and so had fallen off.

10. [44]

    In that context, she said that the first question which she was required to answer was whether it can positively be shown by the Crown that the sample was taken in accordance with Pt 4 of Sch 3 of the Road Transport Act. As I have indicated, her Honour was in error in stating that the onus fell upon the Crown to establish this fact. She stated that the requirements in Pt 4 of Sch 3 are strict requirements that require strict conformity, so that the integrity of the samples is ensured and so that the evidence obtained, based upon subsequent analysis, is admissible.

11. [45]

    In that context, she rejected the submission that the sample was in fact sealed. She stated that the evidence and a plain reading of the material including the guidelines demonstrated that the sample was not sealed in accordance with the requirements. She concluded that sealing required more than simply placing the inner cap onto the vial. She stated that conclusion followed from a number of factors. First, the analyst Mr Fletcher had concluded that the sample was not sealed. Second, the instructions referred to the need to place the red security cap firmly over the inner cap, and emphasised that the outer cap must not be unscrewed, “otherwise the tamper-evident ring will be broken and separated”.

12. [46]

    She concluded that the reference to the seal in cl 27(4) of Sch 3 of the Road Transport Act must be the same seal as referred to in cl 24, and that breaking the seal must at least include breaking the seal on the outer security cap, as it was the outer cap which protects the integrity of the sample. In those circumstances, she found that the sample was not sealed and that the evidence was unlawfully obtained.

13. [47]

    Her Honour then proceeded to deal with the matters required to be taken into account under s 138(3) of the Evidence Act. Dealing with probative value, she stated that the evidence of Mr Fletcher was that “the analysis is only valid from the time that the blood sample was received into the laboratory”. She described that as a significant opinion where there was a problem with the sample and that this limits the probative value of his evidence and that of Dr Perl considerably.

14. [48]

    She accepted that the evidence of Mr Fletcher and Dr Perl was crucially important. She also accepted that the offences were very serious.

15. [49]

    In dealing with the gravity of the contravention, her Honour stated that she thought the possibility of tampering was relevant, and that the Crown was unable to find an explanation for how it came to be that the sample was not sealed when it arrived at the laboratory. She stated that the Crown could not exclude the possibility of tampering, which she described as a very grave contravention.

16. [50]

    She stated that she was unable to make a finding whether the contravention was deliberate or reckless. She accepted that the contravention was not contrary or inconsistent with the International Covenant on Civil and Political Rights, and that there was no evidence as to whether any other proceedings were likely to take place.

17. [51]

    So far as the difficulty of obtaining the evidence without contravention was concerned, her Honour noted the Crown submission that it would have been impossible for the police to obtain the evidence without impropriety. She accepted that what occurred was the only chance for the police to ensure the blood sample was taken, but said that was not to the point. She stated that the contravention could hardly be described as a “mere administrative oversight”.

18. [52]

    In that context, she stated that the Crown was left in a position whereby it could not account for how the sample got from the hospital to the police station. She said that the possibility of tampering might have been discounted had there been evidence from whoever transported the sample.

19. [53]

    Her Honour stated that ultimately s 138 involves a balancing act. In concluding that the evidence should be excluded she accepted the following submission of counsel for the respondent:

A preliminary issue

1. [54]

   Section 5F(3A) of the Criminal Appeal Act limits appeals by the Attorney General or the Director of Public Prosecutions on a decision or ruling on the admissibility of evidence to circumstances where the decision or ruling eliminates or substantially weakens the prosecution’s case. There is no doubt that in the present case the ruling has this effect. Apart from the evidence of Dr Perl and Mr Fletcher and the report on which their evidence is based, the Crown will be unable to prove an essential element of the offence charged, namely, that the respondent was under the influence of cannabis at the time of the accident and that as a result his driving was impaired. The appeal clearly falls within s 5F(3A) of the Criminal Appeal Act.

The submissions on appeal

1. [55]

   The submissions focused on two issues. First, the nature of the appellate review, and second, whether the trial judge erred in concluding the evidence was inadmissible.

2. [56]

   The Director contended that whilst in the present case it was unnecessary to decide the question, the type of appellate review was in the nature of that referred to in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, namely, that the Court should conduct its own review of the material and substitute its own opinion if it was satisfied the conclusion of the trial judge was erroneous. By contrast, the respondent submitted that the review should take place in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40.

3. [57]

   Because I have concluded that the trial judge was in error in the approach she adopted in assessing the probative value of the evidence for the purpose of s 138(3)(a) of the Evidence Act, it is unnecessary to finally determine this question. However, in deference to the parties’ submissions it is appropriate that I at least express some preliminary views on the issue.

4. [58]

   The Deputy Director submitted that an appeal under s 5F(3A) of the Criminal Appeal Act is an appeal by way of rehearing. She submitted that in those circumstances, the appellate court must give the judgment which in its opinion ought to have been given at first instance (referring to Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [30], [32], and [153]) (“SZVFW”).

5. [59]

   She submitted that the evaluation which the section required was not to be equated with a discretionary decision, even where the evaluation concerns an issue on which minds might differ (referring to The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [61]).

6. [60]

   The Director submitted that s 138 does not provide for a court to fashion orders from amongst a range of outcomes, but rather involves a binary determination. She submitted that the context and purpose of s 138 confirms this analysis. She submitted that s 138 concerns questions of high public importance, namely, the balance to be struck between the desirability of admitting evidence which may be integral in the prosecution of a serious crime, and the undesirability of encouraging or perpetuating the obtaining of evidence by improper or illegal means. She submitted that the resolution of these questions by appellate courts leads to consistency and predictability.

7. [61]

   The Director referred to the fact that the scope of appellate review of a decision under s 138 was left open in Kadir v The Queen [2020] HCA 1; (2020) 94 ALJR 168 at [9] (“Kadir”).

8. [62]

   The respondent submitted, referring to what was said by Allsop P in DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [88] and by Basten JA in Brown v Director of Public Prosecutions (NSW) [2018] NSWCCA 94 at [6], that taking the features of s 5F(3A) of the Criminal Appeal Act and s 138 of the Evidence Act together, the Court should conclude that it is required to exercise a substantial degree of judicial restraint, such that the trial judge’s ruling cannot be overturned merely on the basis that the Court would have reached a different conclusion.

9. [63]

   The respondent stated that “[a]spects of s 5F indicate a type of appeal that has been described as a ‘rehearing’, as distinct from an appeal in the strict sense or an appeal conducted as a hearing de novo”. He submitted, however, that the reliance by the Director on what was said by Gageler J in SZVFW was an unwarranted simplification of his reasoning. He submitted that the effect of his Honour’s reasoning included that whilst error is generally indispensable, the nature of the error required depends upon the type of decision at first instance, and there are a number of natural limitations which warrant restraint, depending on the nature of the appeal. He particularly relied upon his Honour’s conclusion in SZVFW at [49]:

10. [64]

    The respondent submitted that the nature of the decision under review in SZVFW was different to a review of a decision under s 138 on a s 5F(3A) appeal. He submitted that judicial review for legal unreasonableness involves a question of law, whilst a s 138 decision requires evaluation of multiple complex issues requiring input of subjective views and balancing conflicting public policies, and as such is akin to the type of discretion discussed in Norbis v Norbis (1986) 161 CLR 513 at 518; [1986] HCA 17.

11. [65]

    While the respondent accepted that s 5F(3A) imposes a brake on the number of Crown appeals, thereby limiting the fracturing of trials, he also submitted that the undesirability of such fracturing still has work to do in interpreting the standard of an appellate review under that provision. He submitted that a large number of appeals under s 5F deal with interlocutory matters, and a great deal of judicial restraint has traditionally been observed in connection with the appellate review permitted by that section.

12. [66]

    The respondent also submitted that although there is power in the Court to substitute its own decision regarding admissibility, such matters are regularly remitted to the trial judge. He also submitted that the decision to refuse to admit evidence, whilst not subject to further review in the event of an acquittal, is essentially procedural.

13. [67]

    The respondent submitted that the preponderance of authority favours an approach analogous to that set out in House v The King. He referred to R v Grech; R v Kadir [2017] NSWCCA 288 at [69] (the question was left open in the High Court in Kadir at [9]), R v Rapolti [2016] NSWCCA 264; 317 FLR 79 at [201], R v Camilleri (2007) 68 NSWLR 720; [2007] NSWCCA 36 at [27]-[34], and Fleming v R [2009] NSWCCA 233; 197 A Crim R 282 at [22]. He also referred to the decisions of the Victorian Court of Appeal to the same effect: Director of Public Prosecutions v MD (2010) 29 VR 434; [2010] VSCA 233; Director of Public Prosecutions v Marijancevic (2011) 33 VR 440; [2011] VSCA 355 and Slater v R [2019] VSCA 213. He noted that the latter case was decided after the decision of the High Court in SZVFW.

14. [68]

    The respondent submitted that the issue is whether the judgment or discretion involved in the original decision forms part of a spectrum of available decisions, rather than a duality of type of decision-making, referring to DAO at [47] and [50]-[51]. He submitted, referring to the decision in the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [19] that a discretionary decision is one in which no one consideration and no combination of considerations is necessarily determinative of the result. He submitted that in most applications of s 138, the mandatory and further considerations taken into account will likely point in conflicting directions, and so long as all relevant matters and no irrelevant matters were taken into account, different outcomes may be tolerated.

15. [69]

    The respondent also noted that determinations under s 137 of the Evidence Act have been treated as analogous to discretionary decisions (cf Riley v R [2011] NSWCCA 238 at [161]-[162]). He submitted that the decision in Bauer, which determined that in an appeal in respect of a ruling under s 97 of the Evidence Act it was a matter for the appellate court to determine whether the evidence was of significant probative value, involved fixed legal standards and different considerations to those under s 138 as the analysis under that section did not invoke such a standard.

16. [70]

    The Director submitted that the trial judge erred by not assessing the probative value of the evidence based on its capacity to prove the fact in issue, namely, whether the respondent was driving under the influence of cannabis, by impermissibly making an assessment of the reliability of the evidence contrary to the principle in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14.

17. [71]

    Counsel for the Director submitted that if it was accepted that cannabis was found in an unadulterated blood sample taken from the respondent, its capacity to affect a fact in issue was very high. She submitted that the question of whether there were problems with the integrity of the blood samples was a question of reliability of the evidence, namely, whether there was a reasonable possibility that the integrity of the sample was affected. She submitted that this was the approach taken by this Court in R v Ali [2015] NSWCCA 72.

18. [72]

    Counsel for the Director referred to the distinction drawn by the plurality in IMM at [50] between approaches to assessing the probative value of identification evidence made briefly in foggy conditions and in bad light. The plurality in that case pointed out that one approach is to say that taking such evidence at its highest it is as high as any other identification evidence, and then to look for particular weaknesses, whilst the other correct approach is that it is an identification, but a weak one because it is simply unconvincing. She submitted that by contrast in the present case there are only two alternatives. The first is if the blood sample is a sample taken from the respondent and its scientific integrity has been maintained. She said that in those circumstances its probative value would be very high. By contrast, she submitted that if the scientific integrity had not been maintained there would be no probative value.

19. [73]

    She submitted that in the present case there was no positive finding that the integrity of the sample had been compromised, but because the outer cap was not on the sample that affected the ability of the Crown to state that it was impossible for there to have been any interference. However, she emphasised that it was the inner seal of the sample which maintains the scientific integrity. She referred to the adoption by the trial judge of the submission by trial counsel for the respondent that the probative value is not high because the integrity of the sample cannot be guaranteed. She submitted that this involved a misstatement of the principle, because where there are questions concerning the integrity of the sample it is not the matter that the evidence is not admissible until the Crown can, in effect, prove beyond reasonable doubt that the evidence makes out what it is said to make out”, but rather whether it had the capacity to do so. She submitted that what the trial judge found was a risk of tampering which the Crown could not exclude and that that was a matter which in fact went to the question of reliability.

20. [74]

    Counsel for the Director noted that if the sample had been sealed and the external cap placed on it, a certificate of the result could have been tendered to make out the offence under s 52A(3)(a) of the Crimes Act. She noted that the Crown did not challenge the finding that the requirement to seal the sample was not complied with, but submitted that the Crown was still entitled to prove the provenance of the sample. She submitted that the trial judge did not find that its integrity was compromised, but rather that the possibility that a fact finder might find that the integrity was compromised reduced its probative value. She submitted that that was not the correct approach.

21. [75]

    Counsel for the Director submitted that the argument in the Court below focused on the words “fasten and seal” in cl 24 of Sch 3 of the Road Transport Act, submitting that the respondent successfully contended that on its proper construction “fasten” and “seal” require the fixing of both the inner cap and the outer anti-tampering cap. She noted that it was a separate offence to remove the outer anti-tampering cap.

22. [76]

    Dealing with the trial judge’s acceptance of Nurse Irvin’s evidence that she affixed the outer cap, counsel for the Director submitted that the fact that the primary judge did not find that the contravention was an unauthorised removal of the outer cap sat uneasily with the acceptance of Nurse Irvin’s evidence. She rejected the proposition that the trial judge was using the word “seal” in a colloquial sense, submitting that the argument in the Court below focused on the requirement that the blood sample taker must fasten and seal the container.

23. [77]

    Counsel for the Director submitted that the precise finding by the trial judge was that the Crown had failed to prove the sample was taken in accordance with the requirements of cl 24. In answer to the suggestion that what the trial judge was referring to when she spoke of the sample not being sealed was not the proposition that the nurse did not seal it, but rather was focusing on its state when it arrived in Sydney, she submitted that the trial judge specifically found a contravention of cl 24. She noted that the Crown in submissions on this issue in the Court below had submitted that Nurse Irvin was mistaken in her recollection.

24. [78]

    In that context, she submitted that contrary to her Honour’s approach that the onus was on the Crown to establish illegality, the onus was on the respondent and it was not necessary for the Crown to do anything in particular. She submitted that the failure by the trial judge to appreciate that the onus of proving illegality rested on the respondent led to her analysis miscarrying.

25. [79]

    She also submitted that Nurse Irvin was mistaken when she said she did not recall the inner cap being affixed because in fact it was affixed. She submitted this demonstrated that Nurse Irvin’s level of confidence in her recollection was not equivalent to the reliability of that recollection.

26. [80]

    In relation to ground 2, it was submitted that the trial judge ought to have assessed the gravity of the contravention by reference to a failure to seal the sample by the insertion of the outer cap, submitting that was the contravention which was in fact found. Counsel for the Director accepted that tampering was a serious contravention but submitted that should not be found. She submitted that the contravention as found and as ought to have been found was the failure to place the outer cap on in the first place, and that the sample remained in the locked box.

27. [81]

    No separate submissions were made on ground 3.

28. [82]

    The respondent in his written submission helpfully supplied a chronology of events. It is convenient to set it out in full.

29. [83]

    Senior counsel for the respondent submitted that the Director sought to argue the case on a different factual basis to that found by the trial judge, namely, that Nurse Irvin innocently forgot to put the outer cap on. She submitted that if the Crown wished to challenge the acceptance by the trial judge of Nurse Irvin’s evidence there should have been a ground of appeal claiming that the finding was not open or that it was contrary to incontrovertible evidence. She also pointed out that it was submitted on behalf of the respondent in the Court below that there was a breach of the legislation because the outer cap was removed without a direction from Mr Fletcher.

30. [84]

    In written submissions filed on behalf of the respondent the trial judge’s findings as to the contravention were summarised as follows:

31. [85]

    Senior counsel for the respondent submitted that the reference by the trial judge to the sample not being sealed was made in dealing with the Crown’s contention that it was in fact sealed when it was received at FASS in accordance with the legislation because the inner cap was on.

32. [86]

    Senior counsel for the respondent referred to the finding by the trial judge that there was no evidence the cap had fallen off, which she described as troubling because it went directly to the integrity of the relevant evidence. She submitted that the trial judge concluded that her inability to find an explanation for the removal of the cap added to the seriousness of the contravention. She submitted that the case was different to Bauer because even taking the evidence at its highest, there was a clear breach of the integrity of the sample which lessened its probative value (and the evidence of Mr Fletcher which relied upon it). She accepted, however, that the trial judge concluded that she could not say for sure that the blood was tampered with.

33. [87]

    Senior counsel for the respondent submitted that none of these matters had been addressed by Director in his submissions.

34. [88]

    Senior counsel for the respondent also sought to distinguish the case from Bauer, submitting that the considerations under s 138 are more multi-faceted than those under s 137 of the Evidence Act, and that reliability has to come into the s 138 analysis.

The standard of appellate review

1. [89]

   In Brown v The Director of Public Prosecutions (NSW), Basten JA at [6] pointed out that the nature of an appeal is a function of four factors: the provision under which the appeal is brought, the provision under which the decision the subject of the appeal was made, the particular issue raised, and the nature of the error alleged.

2. [90]

   In DAO at [83] Allsop P, referring to Norvenska v Commonwealth Director of Public Prosecutions [2007] NSWCCA 158, was prepared to accept that an appeal under s 5F of the Criminal Appeal Act was an appeal by way of rehearing. Nonetheless, it is important to consider the nature of the order from which the appeal is brought. In the present case two things may be noted. First, it is an interlocutory order and second, it is brought under the exception contained in s 5F(3A) to the principle that s 5F does not extend to appeals against rulings relating to the admissibility of evidence. Further, the requirement that the ruling would eliminate or substantially weaken the Crown case emphasises the importance of the matter under consideration to the outcome of the proceedings. Although the ruling is interlocutory, if as in the present case it effectively eliminates the Crown case it implies that the judicial restraint involved in the review of “discretionary” decisions in accordance with the principles in House v The King would not necessarily apply.

3. [91]

   In most cases, appeals under s 5F(3A) will not give rise to any difficulty as to the standard of appellate review. A decision to admit or reject evidence will generally involve a question of law which allows for only one answer. The issue will only arise in the application of provisions such as s 138 which involve balancing a range of considerations including the probative value of the evidence.

4. [92]

   Prior to dealing with s 138, it is convenient to consider some of the authorities which have dealt with the scope of appellate review in relation to decisions of the nature of those which have been described as discretionary decisions.

5. [93]

   Norbis v Norbis involved a decision of a judge altering the property interests of parties to a marriage in applications under s 79 of the Family Law Act 1975 (Cth). Mason and Deane JJ at 518 described the order as discretionary because it depended upon the application of a very general standard of what was just and equitable, which called for an overall assessment of the matters mentioned in s 79(4), each of which called for an assessment of circumstances. Their Honours went on to make the following remarks at 518-519:

6. [94]

   A similar approach was taken by the plurality in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission. The plurality referred to the concept of discretion in the following terms at [19]:

7. [95]

   The plurality stated that in discretionary decisions of that nature the principles of appellate review referred to in House v The King applied, making the following remarks at [21]:

8. [96]

   Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13 concerned the question of whether an injury was a serious injury as defined in the Accident Compensation Act 1985 (Vic). Section 134AD of that Act provided that on an appeal to the Court of Appeal that Court should decide for itself whether the injury was a serious injury on the material before the trial judge and any other material the Court may receive.

9. [97]

   In rejecting the proposition that the appeal was one to which the principles in House v The King applied, the Court stated at [37] that the varied use of the term “discretion” is apt to create a legal category of indeterminate reference. The Court stated at [40] that the occasion for appropriate appellate intervention will depend upon the nature and scope of the particular statutory appeal for which the legislature provides. The Court stated that the inquiry is not advanced by describing the overall decision-making process of the primary judge as “discretionary”.

10. [98]

    I have already referred to DAO. DAO concerned an appeal from a decision of a District Court judge declining to sever a number of counts on an indictment. However, at an underlying level it concerned the standard of appellate review of a decision to admit or reject tendency evidence under s 97(1)(b) of the Evidence Act. Spigelman CJ at [70] concluded that it was unnecessary to go further than concluding that an appeal from an interlocutory judgment on an application for separate trials is subject to the degree of appellate restraint identified in House v The King. However, the Chief Justice stated at [51] that describing a particular statutory provision as involving either a “judgment” or a “discretion” carries with it the danger of applying a label, rather than conducting an analysis of the applicable statutory regime.

11. [99]

    Allsop P (as his Honour then was) agreed with the comments by the Chief Justice concerning the fact that labels such as “discretion” are apt to mislead. He described the approach to appellate review of a decision under s 97 in the following terms at [100]:

12. [100]

    It is important to note the emphasis placed by his Honour on the words “thinks” in s 97(1)(b). Simpson J, with whom (it seems) Kirby J and Schmidt J agreed, considered that a review of a decision to admit or reject evidence under s 97 was to be carried out in accordance with the principles in House v The King (see [173], [211] and [212]).

13. [101]

    That approach was held to be incorrect in Bauer. However in considering s 138, it must also be remembered that unlike s 97(1)(b), s 138 does not at least directly depend on what the Court thinks or what Allsop P described as “the state of mind” of the Court, but rather on a binary choice as to the desirability of admitting or rejecting the evidence. Thus the justification for the use of an approach akin to that in House v The King referred to by Allsop P does not exist in the case of s 138.

14. [102]

    As I have indicated, the Director placed considerable reliance on the decision of the High Court in SZVFW. The relevant issue for present purposes was whether an appeal from a decision of a judge that a decision of an administrative tribunal was not legally unreasonable was to be determined in accordance with the principles in House v The King. Each member of the Court agreed that it was not to be determined in that fashion.

15. [103]

    Kiefel CJ agreed with the reasons of Nettle and Gordon JJ on this issue, and stated at [18] that it was necessary for the Full Court of the Federal Court to decide for itself the question of whether the Tribunal’s decision was legally unreasonable and whether the primary judge’s reasoning in that regard was correct.

16. [104]

    Gageler J stated at [29] that to describe an appeal as one by way of rehearing can fail to identify all the statutory incidents of the appeal. He emphasised at [30] that like an appeal in the strict sense, an appeal by way of rehearing is a procedure for the correction of error. After reviewing the authorities he came to the conclusion to which I have referred at [63] above.

17. [105]

    Nettle and Gordon JJ focused more narrowly on the issue which was directly before the Court in that case. That is evident from the following passage of their Honour’s judgment at [85]:

18. [106]

    Edelman J at [143] referred to the concept of “judicial restraint”, stating that a label such as review of a “discretionary decision” can lead to confusion. He rejected at [150] as a reason for judicial restraint the fact that there may be room for reasonable differences of opinion, no one opinion being uniquely right. He concluded that could not be sufficient to warrant review on House v The King principles, as that would extend to decisions as to the meaning on legislation or decisions about the common law. He expressed his conclusion in the following terms:

19. [107]

    In Bauer, the Court concluded at [61] that “[t]he question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ”. They stated that consequently, in an appeal against conviction it is for the court itself to decide whether evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was.

20. [108]

    Finally, in Kadir the Court at [9] left open the question of whether the balancing test under s 138(1) of the Evidence Act admits of a unique outcome such that it is not required to demonstrate House v The King error on an appeal under s 5F(3A) of the Criminal Appeal Act.

21. [109]

    Section 138, at least in criminal proceedings (see Kadir at [13]), seeks to balance the competing public policy considerations identified by Stephen and Aickin JJ in Bunning v Cross (1978) 141 CLR 54 at 74; [1978] HCA 22, namely, the desirable goal of bringing to conviction the wrongdoer, and the undesirable effect of curial approval or even encouragement being given to the unlawful conduct of those whose task it is to enforce the law. In that context it was emphasised that unfairness to an accused is only one factor which is to be taken into account.

22. [110]

    Section 138(1) poses the question of whether the desirability of admitting illegally or improperly obtained evidence outweighs the undesirability of doing so. Subsection (3) refers to a series of factors which are to be taken into account in determining the matter. Those matters, whilst mandatory, are not necessarily exhaustive.

23. [111]

    Though it is correct that the matters to be taken into account in s 138(3) pull in different directions, and it is certainly correct that minds might differ on the question of whether the desirability of admitting the evidence is or is not outweighed by the undesirability of doing so, there can only be one correct answer. It seems to me that ultimately, the question posed by the section demands a unique outcome in the sense described by Gageler J in SZVFW at [49]. Further, with respect to a matter which involves important competing questions of public policy, it does not seem to me that merely because the decision by the primary judge could be said to involve an evaluative process, a court of appeal should not substitute its own view on the binary question if it considers that the conclusion reached by the trial judge was incorrect: see SZVFW at [85] This approach is consistent with the approach taken in Bauer to appeals concerning s 97(1)(b) of the Evidence Act.

24. [112]

    In these circumstances, were it necessary to reach a concluded view on this issue it is my opinion that recent authority, in particular SZVFW and Bauer, suggest the conclusion that appellate review of a decision to admit or reject evidence under s 138 is not subject to judicial restraint of the nature of that referred to in House v The King.

25. [113]

    However there are competing considerations. First, in Em v The Queen (2007) 232 CLR 67; [2007] HCA 46, a case concerning s 90 of the Evidence Act empowering the Court to refuse to admit evidence of admissions if it was unfair to a defendant in criminal proceedings, Gleeson CJ and Heydon J at [55] left open the question of whether the standard of judicial review was that laid down in House v The King, whilst Gummow and Hayne JJ at [95] noted that s 138 in contrast to s 137 provides a discretion to exclude improperly or illegally obtained evidence.

26. [114]

    Second, as Gummow and Hayne JJ pointed out in Em, it is necessary to read the Act as a whole. In that context particular reference must be made to s 101 and s 137. In relation to these sections, the preponderance of authority in this State is that appellate review is governed by the principle of judicial restraint expressed in House v The King: see in relation to s 101 for example, R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 at [1] and [65]; AW v R [2009] NSWCCA 1 at [45]; DAO at [104]; as to s 137 see Vickers v R [2006] NSWCCA 60; 160 A Crim R 195 at [76]; R v Blick [2000] NSWCCA; 111 A Crim R 326; R v Arvidson [2008] NSWCCA 135; 185 A Crim R 428 at [27]; CA v R [2017] NSWCCA 324 at [98]; cf Riley at [161]-[162]. It should be noted that a different approach has been taken in Victoria to the predominant NSW approach: McCartney v R (2012) 38 VR 1; [2012] VSCA 268 at [31]-[32] (cited with apparent approval in Bauer at fn 65); Karam v R [2015] VSCA 50 at [118]. Most importantly, as was pointed out by the respondent the preponderance of authority, both in this State and Victoria, is to the effect that the approach to appellate review of decisions under s 138 is analogous to that set out in House v The King: see [67] above. Even if it was necessary to do so I would have had some hesitation in stating these cases were wrongly decided. However, because I am of the view that the trial judge erred in the House v The King sense it is unnecessary to reach a final conclusion on this issue.

Did the trial judge err in rejecting the evidence?

1. [115]

   There are a number of initial difficulties in dealing with this issue. First, as I indicated the trial judge erred in concluding that the onus lay on the Crown to disprove illegality. However the Director did not dispute that there was illegality or impropriety within the meaning of s 138. In these circumstances it is unnecessary to take this matter any further.

2. [116]

   The second matter is of somewhat greater significance. The Director, whilst conceding illegality, put his case on the basis that the relevant contravention was a contravention of cl 24 of Sch 3 of the Road Transport Act, namely, a failure to fasten and seal the container by not affixing the outer cap. This submission was made notwithstanding the trial judge accepted Nurse Irvin’s evidence that she did in fact seal the container with the outer cap and that the relevant contravention was that an unknown person tampered with the sample by removing the outer cap. Although the trial judge referred to the sample not being sealed, it was evident having regard to her acceptance of the evidence of Nurse Irvin that she was referring to her conclusion that the outer cap had been removed between the time the sample had left the possession of Nurse Irvin and its arrival at Gilgandra Police Station some seven days later.

3. [117]

   Whether or not it would be open to do so, her Honour’s factual finding was not challenged on the appeal. Her conclusion in these circumstances has to be evaluated on the basis that at some point the outer cap appears to have been removed. However, it is important to note that her finding was not that the blood sample had been tampered with, but that it could not be positively shown by the Crown that the sample was taken in accordance with Pt 4 of Sch 3. It is also implicit in her adoption of the respondent’s submission to the effect that the gravity of the impropriety or contravention is unknown and that the probative value is not high because the integrity of the blood sample cannot be guaranteed: see [53] above.

4. [118]

   In these circumstances the reliability of Mr Fletcher’s evidence and that of Dr Perl depends on the reliability of the blood sample. Mr Fletcher’s evidence, to which I have referred at [28] above, was that if the inner cap was present it would seal the blood safely within the tube. He accepted that the inner screw top can be removed and put back on the vial.

5. [119]

   In the present case there was no evidence that the inner cap had been removed or the integrity of the sample compromised. However there remains the possibility that that was the case.

6. [120]

   In these circumstances, in my opinion the trial judge erred in assessing the probative value of the evidence. Consistent with what was said in IMM at [49]-[54] and Bauer at [69], it was necessary to take the evidence at its highest. Although the absence of the outer cap casts some doubts on the reliability of the evidence, that would ultimately be a matter for the jury in assessing the evidence.

7. [121]

   As I indicated, the respondent submitted that even taking the evidence at its highest, it was based on a sample that had possibly been the subject of tampering. The submission involves the proposition that in considering the probative value of the evidence of an expert such as Mr Fletcher, the unreliability of the material on which his or her opinion was based can be taken into account in assessing its probative value: see R v Dickman (2017) 261 CLR 601; [2017] HCA 24 at [43]; Stephen Odgers, Uniform Evidence Law (15th ed, 2020, Thomson Reuters) at1285.

8. [122]

   I do not think this submission can be accepted. This is because the removal of the outer cap at most resulted in the possibility of the sample being contaminated. The jury as the tribunal of fact would be entitled to reject that possibility. Thus taken at its highest the evidence of Mr Fletcher’s assessment of the sample would be of very high probative value.

9. [123]

   In Bauer, the High Court overruled the decisions of this Court in R v GM (2016) 97 NSWLR 706; [2016] NSWCCA 78 and BM v R [2017] NSWCCA 253, and the decision of the Victorian Court of Appeal in Murdoch v R (2013) 40 VR 451; [2013] VSCA 272. The Court held at [69] that unless the risk of contamination, concoction or collusion is so great that the jury could not rationally accept the evidence, the determination of probative value excludes consideration of credibility and reliability. The same approach was taken in Kadir at [51]. Similarly in the present case, the jury could rationally conclude that there had been no interference with the sample. In these circumstances the probative value of the evidence should be assessed on the basis that the blood sample had not been interfered with.

10. [124]

    This approach is similar to that adopted by this Court in R v Ali. That case concerned a Crown appeal under s 5F(3A) of the Criminal Appeal Act against a ruling excluding DNA evidence on the basis that the evidence of continuity of custody of the material on which the DNA evidence was found and a risk of contamination lessened its probative value. The Court held, contrary to that ruling, that s 137 did not bar the admissibility of the DNA certificates and that it was open to the jury, acting reasonably, to accept the evidence in assessing whether the respondent committed the offences. Hoeben CJ at CL, with whom the other members of the Court agreed, stated at [50] that “[t]he capacity of the certificates to establish that issue, as distinct from the weight likely to be given to them, is substantial” and that the certificate thus had significant probative value.

11. [125]

    It follows that the trial judge erred in the manner she assessed the probative value of the evidence. It is therefore necessary to consider afresh whether the evidence should be excluded under s 138.

12. [126]

    So far as the matters referred to in s 138(3) are concerned, in my opinion the probative value of the evidence is high for the reasons which I have given (s 138(3)(a)). It is self-evident that the evidence is critical to the prosecution case (s 138(3)(b)) and that the nature of the offences for which the respondent is charged are very serious (s 138(3)(c)).

13. [127]

    So far as s 138(3)(d) and (e) are concerned, the finding by the trial judge that the outer cap was removed in transit is a finding of a relatively serious contravention, the seriousness being tempered by the fact that her Honour did not find that the integrity of the sample had been compromised but rather that its integrity could not be guaranteed. Further, there was no material on which a conclusion can be reached as to whether the contravention was deliberate or reckless (s 138(3)(e)) or for that matter negligent.

14. [128]

    The contravention was not contrary or inconsistent with the right of a person recognised by the International Covenant on Civil and Political Rights (s 138(3)(f)), and there is no suggestion that any other proceedings are likely to be taken in relation to the contravention (s 138(3)(g)).

15. [129]

    So far as s 138(3)(h) is concerned, there is little doubt that the evidence could readily have been obtained without any contravention. The contravention is one in relation to process as distinct from a contravention or impropriety in taking the sample itself.

16. [130]

    The other relevant matter is unfairness to the respondent. However this is tempered by the need for the jury to be satisfied beyond reasonable doubt that the integrity of the sample was preserved notwithstanding the removal of the outer cap.

17. [131]

    It is ultimately necessary to balance the two competing policy considerations referred to in Bunning v Cross taking into account the matters referred to in s 138(3). In my opinion, the importance of the evidence and the seriousness of the charge leads to the conclusion that the desirability of bringing to account a potential wrongdoer outweighs the undesirability of curial approval or encouragement of the taking and handling of blood samples as in the present case in disregard of the relevant legislation.

18. [132]

    It follows that the appeal should be allowed.

Orders

1. [133]

   In the result I would make the following orders:

   1. (1)

      Appeal allowed.

   2. (2)

      Set aside the ruling of Baly SC DCJ of 3 December 2019 excluding the evidence of the FASS analyst Mr Brett Fletcher and that of Dr Judith Perl.

   3. (3)

      Declare that the evidence of Mr Fletcher and Dr Perl is admissible in these proceedings.

2. [134]

   BUTTON J: I agree with the Chief Justice that the difficult question of the nature of appellant review of a determination to admit or reject evidence pursuant to s 138 of the Evidence Act 1995 (NSW) need not be decided to determine this appeal.

3. [135]

   Having said that, the presence of the words "desirability" and “undesirability” in the section may, in my opinion, play a role in determining whether the question of admission or rejection of evidence posited by the section can be characterised as admitting of only one right answer. So may the fact that, although s 138(3) sets out a number of matters that must be taken into account, it does so without limitation of other matters that may be taken into account.

4. [136]

   I also agree with the Chief Justice that, in accordance with The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [69], the probative value of the evidence depended upon its potential to prove to the satisfaction of the jury that the respondent drove with THC in his blood, despite the obvious criticisms that can be made before the jury of the provenance of the evidence. The probative value of the evidence, on that understanding of the concept, was very high.

5. [137]

   Finally, reflecting upon the section afresh, I agree with the Chief Justice that the evidence should be admitted, not least because of the gravity of the alleged offending and the importance of the evidence to the prosecution case.

6. [138]

   In short, I agree with the reasons and proposed orders of the Chief Justice.

7. [139]

   WILSON J: I agree with the orders proposed by the Chief Justice, for the reasons his Honour has given.

8. [140]

   I also agree that, for the purposes of these proceedings, it is not necessary to come to a concluded view as to the nature and scope of appellate review.