Police v Dunstall  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.