[2][3] 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".

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.

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.

The Full Court (Lavan and Brinsden JJ, Burt CJ dissenting) held that the discretion was not properly exercised.

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.