R v Riley [2020] NSWCCA 283

R v Riley [2020] NSWCCA 283 · Read the judgment on AustLII

Catchwords: Illegally obtained evidence – discretion to admit – standard of appellate review

In this decision the Court of Criminal Appeal (‘CCA’) has considered a case where illegally-obtained evidence was rejected by a trial judge. In making the determination, they held that the probative value of the evidence must be taken at its highest, excluding (in all but the most extreme circumstances) the risk of contamination, concoction or collusion. And in considering this kind of scenario, they have determined that there is only one correct answer to the question of admissibility – which has consequences for the standard of appeal.

The Respondent (this was a Crown appeal) faced trial for dangerous driving causing death to one victim, and grievous bodily harm to a second, whilst under the influence of a drug; the victims were his partner and her daughter. After the accident he was taken to hospital and a blood sample taken. What happened with the blood sample is key, but in due course a lab result was produced showing that he had cannabis and other drugs in his system, and based on that material experts gave evidence the drugs would have impaired his ability to drive.

The regulations required the blood sample be sealed when it was taken. The evidence established that the procedure involved two seals – an inner- and an outer-seal. When the sample came to the lab for testing, the inner seal was still there, but the outer seal was not. The trial judge considered this to be in breach of the regulations, rendering the evidence illegally obtained. Because of Evidence Act 1995 s 138 it was therefore necessary to determine whether the desirability of admitting the evidence outweighed the undesirability of admitting evidence that has been obtained in the way that the evidence was obtained. The trial judge excluded the evidence. Having been left with no case, the Crown appealed to the CCA.

The CCA (Bathurst CJ, Button and Wilson JJ agreeing, each with some brief additional remarks) allowed the Crown’s appeal.

There were two main issues: The admissibility of the evidence, and a question of the standard of appellate review.

In considering the admissibility of the evidence, the CCA found that the trial judge erred by concluding that the onus lay on the Crown to disprove illegality (at [36] and [115]). It was correctly conceded on the appeal that the accused bore the onus of proving illegality or impropriety, but once that onus was satisfied the onus fell on the Crown to establish that the evidence should be admitted pursuant to s 138 of the Evidence Act.

The trial judge found (and it was not challenged on the appeal) that the outer cap had been placed on the vial, but it was removed at some time before it arrived at the Police station several days later (at [116]). That was not the same as a finding that the blood sample had been tampered with. Rather it was a finding that the Crown could not prove beyond reasonable doubt that the sample was taken in accordance with the regulations (at [117]). The outer cap was to tamper-proof the sample, but the inner seal was there to maintain the scientific viability of the sample. There was no evidence that the inner seal had been removed or the integrity of the sample compromised – although it remained the possibility that was the case (at [119]). The trial judge was obliged, in accordance with High Court authority, to assess the evidence at its highest. Although the absence of the outer cap casts some doubts on the reliability of the evidence, that would ultimately be a matter for the jury in assessing the evidence (at [120]).

The CCA rejected a submission that in considering the probative value of the evidence of a witness such as the analyst in this case, the unreliability of the material upon which they based their opinion can be taken into account. The removal of the outer cap at most resulted in the possibility of contamination of the sample – and the jury would be entitled to reject that possibility. Taken at its highest, the evidence of the analyst in this case would have very high probative value (at [122]). Furthermore, High Court authority has also held that, unless the risk of contamination, concoction or collusion is so great that the jury could not rationally accept the evidence, then the determination of probative value excludes consideration of credibility and reliability (at [123]). In then redetermining the question under s 138, the CCA determined that the desirability of bringing to account a potential wrongdoer outweighed the desirability of curial approval or encouragement of the taking and handling of blood samples as occurred in the present case (at [131]).

In relation to the question of the standard of appellate review, the Court ultimately considered it unnecessary to decide the issue (at [114], [134], [140]). But it does have importance consequences, because there is a live debate about whether there might be different standards applied when appealing against different decisions within the Evidence Act (and indeed different standards as between States). At issue is whether appeals relating to evidentiary determinations under s 138 [and, by analogy, some other sections which require a balancing of competing factors] require the appellant to establish an error of the kind set out in House v the King (1936) 55 CLR 499. The House v The King standard can be summarised to mean a judicial officer taking into account something they should not, failing to consider something they are obliged to consider, or making some unidentified error resulting in a decision which despite no patent mistake is clearly wrong. Having reviewed the various authorities (at [89]-[110]), it was considered that the decision of whether evidence is admissible under s 138 demands a unique outcome. That is, it is susceptible of only one correct answer (at [111]). As a result, the Court held, obiter, that appellate review of a decision to admit or reject evidence under s 138 is not subject to the judicial restraint of the kind mentioned in House v The King.

In practice, that probably places a higher burden on trial judges, since it will not be enough to make a decision which is open to them – the trial judge must in fact make the correct decision.