Bunning v Cross
High Court of Australia · 1978
Bunning v Cross (1978) 141 CLR 54
The police obtained the evidence improperly, and it proves the offence. Does the impropriety mean the jury never hears it?
In every uniform Evidence Act jurisdiction the common-law discretion has been replaced by s 138, and the replacement is not a restatement. Section 138(1) provides that improperly or illegally obtained evidence "is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained" -- exclusion is the default and the tendering party must justify admission, where at common law the party seeking exclusion bore the burden. Kiefel CJ, Bell, Keane, Nettle and Edelman JJ trace the provision to the ALRC's "modified form of the common law exclusionary public policy discretion articulated in Bunning v Cross", the two modifications being "to place the onus on the tendering party to justify admission and to clearly articulate the factors informing the competing public interests" ([11]). Section 138 is also wider in reach: unlike Bunning it is not confined to criminal proceedings or to impropriety by law enforcement, so "the public interests that the court is required to weigh are broader" ([12]-[13]). Bunning is not spent -- in a criminal proceeding where police obtained the evidence, "the more focussed public interests identified in Bunning v Cross remain apt" ([13]) -- but in a uniform Evidence Act jurisdiction the analysis starts from s 138(1) and the factors in s 138(3), not from the common law.
What happened?
A patrolman in Perth stopped Bunning for speeding, smelled liquor on his breath, and watched him stagger as he got out of the car. He never asked for the roadside "preliminary test" that s 66(1) of the Road Traffic Act 1974 (WA) allowed. He took Bunning straight to the road patrol section for a breathalyser, which returned a reading of 0.190 per cent, and charged him under s 63(1) with driving under the influence of alcohol to such an extent as to be incapable of proper control.
The power to require the station test came from s 66(2)(c), which needed "reasonable grounds to believe" the s 63 offence had been committed. At the hearing in the Court of Petty Sessions in Perth in May 1976 the magistrate found the patrolman had no objectively reasonable suspicion of that at the time. He excluded the breathalyser evidence and dismissed the charge (141 CLR 54 at 57).
What did the Court decide?
Special leave was granted and Bunning lost: the Full Court's order was varied to direct the magistrate to convict, and the appeal was otherwise dismissed. Murphy J dissented.
The joint reasons of Stephen and Aickin JJ are the ones always cited, and most of their work is done on the facts. The magistrate's discretion had miscarried because he had been "largely concerned with the concept of fairness to the accused", and their Honours could see no unfairness: "[i]f a 'breathalyzer' test, properly performed and with all attendant safeguards observed, discloses an excessive level of alcohol in a motorist's blood it is in no sense 'unfair' to use it in the conviction of the motorist" (141 CLR 54 at 77). What was at stake instead was "large matters of public policy" (at 77) — and their Honours declined to state the criteria "in the abstract but only by reference to the case in hand", lest the discretion "become fettered by rules, seemingly apt enough when first conceived but inappropriate to all the varied circumstances with which courts will be confronted in the future" (at 77).
Applied here: the illegality "arises only from mistake, and is neither deliberate nor reckless" (at 79); the nature of the offence was one "with which Australian legislatures have been much concerned in recent years and the commission of which may place in jeopardy the lives of other users of the highway" (at 80); the ease with which the law could have been complied with was "a wholly equivocal factor" (at 80); and the legislature's "quite deliberate intent ... narrowly to restrict the police" favoured rejection (at 80). The balance came down in favour of admission.
Proposition
What is the principle?
Improperly or illegally obtained evidence is excluded not automatically but by a discretionary balance between the desirability of admitting probative evidence and the undesirability of the court appearing to condone the impropriety that produced it.
Why does this case matter?
Look at what the magistrate did wrong. He was not wrong about the facts and he was not wrong that the evidence had been unlawfully obtained — Jones J had already held that at an earlier stage. He was wrong about the question. He asked whether what had happened was unfair to the accused, and Stephen and Aickin JJ answered that unfairness "does not enter into this case, any more than it should in a case of the unlawful search of person or premises" (at 77). An unlawful body search that turns up a weapon is not unfair to the person carrying it; it is a different kind of problem altogether, and naming it correctly is most of the work.
The second thing to take from it is that the balance here came down in favour of admission, and the case is still a cornerstone of exclusion. Both are true, and the reason is the starting point. At common law the evidence was "admissible" and the question was whether the magistrate should "in his discretion reject" it (at 66) — so a party seeking exclusion has to earn it on the facts, and here the mistaken character of the illegality, the seriousness of drink-driving and the equivocal nature of how easily the police could have complied did not get there. Under s 138 the starting point is the other way round. That is why Bunning is cited by both sides of every argument about improperly obtained evidence, and why an answer has to work the factors rather than announce a presumption.
Exam and application relevance
Start by asking which regime you are in. In a uniform Evidence Act jurisdiction the analysis is s 138, not the common law, and the difference is not cosmetic: under s 138(1) the evidence "is not to be admitted unless the desirability of admitting" it outweighs the undesirability, so the tendering party is the one who has to justify admission. Work through the s 138(3) factors by name.
Where Bunning itself governs, the factor students most often mishandle is cogency, and the judgment is precise about it. "To treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it" — so cogency "should, generally, be allowed to play no part" in those cases, subject to exceptions such as evidence "both vital to conviction and ... of a perishable or evanescent nature" (at 79). Where the illegality "arises only from mistake", cogency is a factor, because it bears on "the desirability of bringing wrongdoers to conviction" — and it weakens if equally cogent untainted evidence was available anyway (at 79).
So do not write that cogency cuts both ways. Classify the impropriety first; cogency only enters the scales once you have.
Check your understanding
Two cases, identical evidence and identical probative value. In one the police broke the law by mistake; in the other, deliberately. Why does cogency generally weigh differently in the two — and what kind of case did Stephen and Aickin JJ leave as an exception?