Police v Dunstall [2015] HCA 26 (5 August 2015)

In this matter a driver who was caught driving over the prescribed limit was taken by police to a hospital where his blood was drawn for police purposes. A breathalyser result was issued and a police certificate was created showing the prescribed limit was exceeded.

The blood test taken at hospital was lost.

At hearing the defendant pleaded not guilty. The blood sample was found to be not be useable due to an error at the hospital. It was submitted that the absence of this blood test denied the defendant procedural fairness as it denied the defendant the opportunity to challenge the police evidence (in the form of a breathalyser result certificate).

The magistrate gave a direction known as a “Lobban discretion” (a discretion had by judges to exclude evidence untainted by illegality or impropriety where admission of evidence would render the trial of the accused an unfair trial).

The police breathalyser certificate and the blood sample were excluded as evidence from trial. The police appealed this decision to the Supreme Court of South Australia and the Court of Appeal. In both instances the police appeal was dismissed.

The matter was appealed to the High Court by the police. The High court remitted the matter to the magistrate. The High Court noted the presence of the Lobban discretion.

M v R [2015] NSWSC 138

In the recent Supreme Court judgment of M v R Justice McCallum provided guidance on the subject of Show Cause events and what this means in the context of the recent amendments to the Bail Act 2013 (NSW).

In the amended act, the accused must now demonstrate, if charged with specific offences, why incarceration and being held in remand pending hearing should not be allowed; that is, “show cause why detention is not justified”. If cause is not shown then bail is refused.

Prior to judgment the legal view of the act was that the amendments create a two-step process:

1. The “Show Cause” requirement – is there a reason the accused should be released?; and
2. The “Unacceptable Risk” requirement – does the release of the accused pose an unacceptable risk which cannot be mitigated in the circumstances?;

In Her Honour’s reasoning, the two-steps are inextricably linked – that is, to show cause one must argue the risks associated with release.

New Approach

It would appear following Her Honour’s judgment that the new approach in Bail matters is that the accused must now demonstrate that there are no unacceptable risks for offences generally and in show cause offences the accused must demonstrate for the Court that any concern regarding bail on an offence does not result in an unacceptable risk.

Further, if there are no unacceptable risks then not granting bail would necessarily be unjustified.