Police v O'Brien [2008] NSWLC 12

Police v O'Brien [2008] NSWLC 12

Lot 152 Peakhill Road was the accused's home at the relevant time, so the breath test was administered contrary to the statutory restriction. However, the evidence may be admitted at the court's discretion under s.138 Evidence Act 1995, and given the honest belief of the police and absence of recklessness, the certificate was admitted into evidence.

Jurisdiction
Australia
Judgment Date
18 June 2008
Procedural Posture
Criminal / Trial at First Instance
Outcome
Breath analysis certificate admitted into evidence.
Legal Topics
['pca (prescribed Concentration of Alcohol)' 'breath Analysis' 'admissibility of Evidence' 'improperly Obtained Evidence']
['criminal Law' 'traffic Law'] ['pca (prescribed Concentration of Alcohol)' 'breath Analysis' 'admissibility of Evidence' 'improperly Obtained Evidence']

Case Brief

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Procedural Posture

Criminal / Trial at First Instance

Legal Issues

  1. 1 ["Was the breath test administered at the accused's home?" 'If it was, is evidence of what subsequently followed inadmissible or does the court have a discretion to admit the evidence?' 'If the court has discretion to admit or reject the evidence, how should it be exercised?']

Ratio Decidendi

Lot 152 Peakhill Road was the accused's home at the relevant time, so the breath test was administered contrary to the statutory restriction. However, the evidence may be admitted at the court's discretion under s.138 Evidence Act 1995, and given the honest belief of the police and absence of recklessness, the certificate was admitted into evidence.

Court Disposition

Breath analysis certificate admitted into evidence.

Orders

  • []