Bunning v Cross [1978] HCA 22

Bunning v Cross [1978] HCA 22

The magistrate's exercise of discretion miscarried as he misapplied the principles established in Ireland. Given that the police misconduct was neither deliberate nor oppressive, no unfairness to the accused arose, and the evidence was cogent and central; the proper balance of public interests favoured admission. The matter should be remitted with a direction to convict, overriding any further discretion to exclude the evidence.

Jurisdiction
Australia
Procedural Posture
Application for Special Leave and Appeal / High Court Appeal From the Full Court of the Supreme Court of Western Australia
Outcome
Special leave granted. Appeal dismissed. Order of Full Court varied as to disposition—direction to convict given. No order as to costs on the appeal to the High Court.
Legal Topics
['illegally Obtained Evidence' 'discretion to Exclude Evidence' 'road Traffic Offences' 'judicial Review' 'appeal Procedures']
['criminal Law' 'evidence Law' 'administrative Law'] ['illegally Obtained Evidence' 'discretion to Exclude Evidence' 'road Traffic Offences' 'judicial Review' 'appeal Procedures']

Case Brief

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Procedural Posture

Application for Special Leave and Appeal / High Court Appeal From the Full Court of the Supreme Court of Western Australia

Legal Issues

  1. 1 ['Whether evidence of a breathalyzer test result, obtained in breach of statutory requirements, is admissible' 'Whether a magistrate has discretion to exclude admissible but unlawfully obtained evidence and the criteria for exercising that discretion' 'Whether the police action unlawfully compelled the accused to undergo the test or if the evidence was obtained voluntarily' 'Appropriate appellate remedies where a discretion is improperly exercised']

Ratio Decidendi

The magistrate's exercise of discretion miscarried as he misapplied the principles established in Ireland. Given that the police misconduct was neither deliberate nor oppressive, no unfairness to the accused arose, and the evidence was cogent and central; the proper balance of public interests favoured admission. The matter should be remitted with a direction to convict, overriding any further discretion to exclude the evidence.

Court Disposition

Special leave granted. Appeal dismissed. Order of Full Court varied as to disposition—direction to convict given. No order as to costs on the appeal to the High Court.

Orders

  • ['Order of Full Court varied by substituting: Matter to be remitted to the Court of Petty Sessions with a direction that the respondent (defendant) be convicted and that such Court consider the question of penalty and costs.' 'Otherwise, appeal dismissed with no order as to costs on the appeal to this Court.']