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Report No. 94

5.2. Australian Case as to breath test.-

An interesting case arose recently in Australia,1 in which a sample of the breath of the accused for the purpose of measuring its alcoholic content had been unlawfully obtained. The illegality consisted in failure by the police to require the accused to submit to a preliminary roadside test-as prescribed by statute. Initially, the stipendiary magistrate who heard the case held the evidence to be inadmissible on the ground that it had been obtained unlawfully2 and consequentially dismissed the charge of driving under the influence of alcohol. However, following an order to review the decision the magistrate reheard the case. While recognising that illegality alone did not render the evidence inadmissible, he again excluded it, this time in the exercise of his discretion on the ground that the evidence had been unfairly obtained. The prosecution once again sought an order reviewing the decision, and the case ultimately reached the High Court of Australia.

1. Bunning v. Cross, (1978) 19 ALR 641.

2. R. v. Ireland, (1970) 44 ALJR 263 (268).

Evidence Obtained Illegally or Improperly - Proposed Section 166a of the Indian Evidence Act, 1872 Back

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