AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
4
Court of Criminal Appeal 20 February 2007

R v CAMILLERI

[2007] NSWCCA 36

Also reported as (2007) 68 NSWLR 720 (2007) 169 A Crim R 197
Traffic & driving
CRIMINAL LAW APPEAL BY THE CROWN AGAINST JUDGMENT DRINK DRIVING UNLAWFUL TAKING OF BLOOD EVIDENCE CENTRAL TO THE CROWN’S CASE PROBATIVE VALUE OF THE EVIDENCE

Citation: R v Camilleri [2007] NSWCCA 36
Court: Court of Criminal Appeal, New South Wales
Date: 20 February 2007
Judge(s): McClellan CJ at CL; Bell J; Howie J

Background

The respondent faced trial in the Bega District Court on a charge of dangerous driving occasioning death under s 52A of the Crimes Act 1900 (NSW). The charge arose from a single-vehicle rollover on 31 October 2004, following which the respondent's wife died from her injuries. A blood sample taken from the respondent at Bega Hospital that night returned a reading of 0.153g of alcohol per 100ml of blood.

The blood sample was taken by the nurse in charge of the Accident and Emergency section, who genuinely believed she was legally obliged to take it under the Road Transport (Safety and Traffic Management) Act 1999. That belief was mistaken. The respondent had attended the hospital solely to accompany his critically injured wife, not to seek examination or treatment for himself. The statutory duty to take a blood sample only applies to patients who attend or are admitted for examination or treatment following an accident. Because the respondent did not fall within that category, the blood was taken without lawful authority.

The trial judge ruled, first in October 2006 and again at a pre-trial hearing in February 2007, that the blood sample and all evidence derived from it were inadmissible. The Crown appealed those interlocutory rulings under s 5F(3A) of the Criminal Appeal Act 1912.

  • Whether the blood sample was taken in contravention of the Road Transport (Safety and Traffic Management) Act 1999
  • Whether, under s 138 of the Evidence Act 1995, the desirability of admitting the blood analysis evidence outweighed the undesirability of admitting evidence obtained improperly
  • What weight should be given to the seriousness of the offence, the probative value of the evidence, and the nature of the impropriety when exercising the s 138 discretion

Decision

The Court of Criminal Appeal agreed with the trial judge's finding that the blood was taken without lawful authority. Because the respondent attended the hospital to be with his dying wife, and neither sought nor received examination or treatment, the preconditions for the statutory duty to take blood were not met. The taking of the sample was therefore improper within the meaning of s 138(1) of the Evidence Act 1995.

However, the Court held that the trial judge erred in the application of the s 138 balancing exercise. Section 138(1) requires a court to weigh the desirability of admitting improperly obtained evidence against the undesirability of admitting evidence obtained in that way. The exercise does not turn on securing a fair trial for the accused; it balances two competing public interests.

The Court identified several factors that strongly favoured admission. The charge was serious, carrying a maximum of ten years' imprisonment and involving the loss of a human life. The evidence had significant probative value, potentially forming the foundation of the Crown's case. Critically, the impropriety was entirely innocent: the nurse acted in good faith on a genuine, if mistaken, belief that she was fulfilling a statutory obligation. There was no deliberate or reckless breach of the law by police or the nurse.

McClellan CJ at CL observed that where the breach is innocent and the alleged offence serious, powerful countervailing considerations would be needed before the evidence should be rejected. No such considerations existed here. The Court allowed the appeal and quashed the order excluding the blood sample evidence, leaving it open to the trial judge to consider any separate admissibility questions unrelated to the manner in which the sample was taken.

Orders Made

  • Crown appeal allowed.
  • The order of McLoughlin DCJ rejecting evidence relating to the blood sample is quashed.

Key Takeaways

  • Under s 138 of the Evidence Act 1995, the admissibility of improperly obtained evidence involves a balance between two public interests, neither of which is directed at securing a fair trial for the accused.
  • The Court of Criminal Appeal confirmed that the seriousness of the offence is a material factor in the s 138 balancing exercise: the public interest in conviction is greater where an offence carries significant maximum penalties and involves the loss of life.
  • Where impropriety is innocent (that is, arising from a genuine but mistaken belief in a legal obligation rather than a deliberate or reckless breach), this substantially reduces the weight of the considerations pointing toward exclusion.
  • High probative value, particularly where evidence is central to the prosecution case, weighs in favour of admission under s 138.
  • A distinction exists between evidence obtained through an innocent administrative error and evidence obtained through knowing or reckless disregard of the law by authorities: the latter raises stronger grounds for exclusion.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 52A
- Criminal Appeal Act 1912 (NSW), s 5F(3A)
- Evidence Act 1995 (NSW), s 138
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 20

Cases:
- Lill v Thompson (Loveday J, unreported, NSWSC, 30 January 1989); (1989) 8 MVR 300
- R v Dalley (2002) 132 A Crim R 169
- R v EM [2003] NSWCCA 374