Bunning v Cross

Bunning v Cross
Bunning v Cross
Court	High Court of Australia
Decided	14 June 1978
Citation(s)	[1978] HCA 22 (1978) 141 CLR 54
Case history
Subsequent action(s)	none
Case opinions
	Improperly or illegally obtained does not inherently render it inadmissible; however, it confers upon a judge a discretion to reject it (3:2) (per Barwick CJ, Stephen and Aickin JJ; Jacobs and Murphy JJ dissenting).
Court membership
Judge(s) sitting	Barwick CJ, Stephen, Jacobs, Murphy & Aickin JJ
Keywords
	Admissibility of evidence, improperly or illegally obtained evidence

Last updated March 17, 2019

Bunning v Cross [1978] HCA 22, 141 CLR 54 (HCA), is an Australian evidence law case, in which the admissibility of improperly gained evidence is examined. Like the similar R v Ireland (1970) 126 CLR 321, Bunning v Cross, the ruling of the High Court of Australia has been formulated as an exclusionary rule, namely the onus is on the accused to prove the misconduct and justify exclusion,^[1] and is known as the Bunning discretion (cf. Ireland discretion).^[2]^[3]

Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania and numerous smaller islands. It is the largest country in Oceania and the world's sixth-largest country by total area. The neighbouring countries are Papua New Guinea, Indonesia and East Timor to the north; the Solomon Islands and Vanuatu to the north-east; and New Zealand to the south-east. The population of 25 million is highly urbanised and heavily concentrated on the eastern seaboard. Australia's capital is Canberra, and its largest city is Sydney. The country's other major metropolitan areas are Melbourne, Brisbane, Perth and Adelaide.

The law of evidence, also known as the rules of evidence, encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of fact in reaching its decision. The trier of fact is a judge in bench trials, or the jury in any cases involving a jury. The law of evidence is also concerned with the quantum (amount), quality, and type of proof needed to prevail in litigation. The rules vary depending upon whether the venue is a criminal court, civil court, or family court, and they vary by jurisdiction.

The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the states, and the ability to interpret the Constitution of Australia and thereby shape the development of federalism in Australia.

Facts

Mr. Bunning was charged under s. 63 (1) of the Road Traffic Act, 1974 with having driven a car "whilst under the influence of alcohol to such an extent as to be incapable of having proper control of it". Burton S M dismissed the charge, holding that the evidence of the result of a breathalyzer test was inadmissible because the police officer's requirement that the applicant undergo the test was unlawful.

The respondent (i.e., Cross, the prosecutor) sought and obtained an order to review from the Supreme Court of Western Australia under the Justices Act 1902 (WA), as amended. The relevant provisions (ss. 197, 198, 205, 206, 206A and 206F) are set out in the judgment of the Chief Justice. Jones J heard the return to the order and decided that the evidence was admissible but that, in the circumstances, the magistrate was entitled in his discretion to admit or to reject it. Jones J declined to direct that the evidence should be admitted, but expressed the view that, if he were to decide the question for himself, he would admit it. He then made an order directing the magistrate to rehear the case and to determine it "in accordance with this judgment and according to law". This can only mean (and s. 206F makes this clear) that the magistrate was bound to follow Jones J's directions.

The Supreme Court of Western Australia is the highest state court in the Australian State of Western Australia. It has unlimited jurisdiction within the state in civil matters, and hears the most serious criminal matters.

Burton SM reheard the case, treated the evidence of the breathalyzer test as admissible, and, in his discretion, rejected the evidence. He then dismissed the charge for the second time.

The respondent sought and obtained another order to review on the ground that the magistrate had not properly exercised his discretion. The Full Court (Lavan and Brinsden JJ, Burt CJ dissenting) held that the discretion was not properly exercised. Burt CJ held that the magistrate took into account all relevant matters. Lavan J took the view that Mr. Burton had not taken into account all relevant considerations and directed that he should reconsider the exercise of discretion. Brinsden J considered that the magistrate was bound to admit the evidence and thought the result should be a conviction. None of the justices of the Full Court was willing to exercise the discretion to admit or exclude the evidence, and none was willing that the Full Court should convict (although urged to do so by the respondent). They also refrained from directing the magistrate to convict.

Judgment

Majority opinion

Barwick CJ authored a concurring opinion, and Stephen and Aickin JJ co-authored a concurring opinion. The majority ruled for the applicant, the prosecutor, and ordered the case to be remitted to the magistrate, who was directed to convict the respondent and impose upon the respondent an appropriate penalty.

In law, a concurring opinion is in certain legal systems a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision. When no absolute majority of the court can agree on the basis for deciding the case, the decision of the court may be contained in a number of concurring opinions, and the concurring opinion joined by the greatest number of judges is referred to as the plurality opinion.

Dissenting opinion

Jacobs and Murphy JJ both authored individual dissenting opinions.

A dissenting opinion is an opinion in a legal case in certain legal systems written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment. When not necessarily referring to a legal decision, this can also be referred to as a minority report.

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References

↑ Zahra, Peter. "Confessional Evidence". Public Defender's Office.
↑ "Exclusion of improperly or illegally obtained evidence". Australian Law Reform Commission.
↑ Frank Bates. (1994.) "Improperly Obtained Evidence and Public Policy: An Australian Perspective", The International and Comparative Law Quarterly, 43(2):379-91.

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[1] Zahra, Peter. "Confessional Evidence". Public Defender's Office.

[2] "Exclusion of improperly or illegally obtained evidence". Australian Law Reform Commission.

[3] Frank Bates. (1994.) "Improperly Obtained Evidence and Public Policy: An Australian Perspective", The International and Comparative Law Quarterly, 43(2):379-91.