Andel v Carter - [2025] VSC 433

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 02388

BETWEEN:

JAKE ANDEL	Plaintiff
v
JAMES CARTER & ANOR (according to the attached Schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2025
DATE OF JUDGMENT:	23 July 2025
CASE MAY BE CITED AS:	Andel v Carter
MEDIUM NEUTRAL CITATION:	[2025] VSC 433

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CRIMINAL PROCEDURE — Application for judicial review from Magistrates’ Court decision to amend a charge laid under s 49(1)(eb) of the Road Safety Act 1986 (Vic) (‘Act’) — Charge identified the incorrect paragraph of s 55E(2) of the Act — Whether the statutory precondition to making the requirement to accompany in s 55E(2) of the Act is an essential element of the offence — Power to amend a charge under s 8 of the Criminal Procedure Act 2009 (Vic) (‘CPA’) after expiry of limitation period — Whether the amendment had the effect of creating a new offence — Director of Public Prosecutions v Kypri (2011) 33 VR 157, Fox v Director of Public Prosecutions (2022) 66 VR 223, Sheerin v Director of Public Prosecutions (2021) 95 MVR 291, and DPP Reference No 2 of 2001; Collicoat v DPP; Bell v Dawson (2001) 4 VR 55 referred to — Original charge was defective — Amendment did not have the effect of commencing a proceeding for a new offence — Requirements of s 8(4) of the CPA otherwise met — Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Billings of counsel	C Marshall & Associates
For the First Defendant	Ms E Millar	Victoria Police Legal Services Department

HER HONOUR:

Introduction and background

Section 49(1)(eb) of the Road Safety Act 1986 (Vic) (‘Act’) provides that it is an offence for a person to refuse to provide a sample of oral fluid in accordance with ss 55D or 55E of the Act when required to do so, or refuses to comply with any other requirement made under those sections. Sections 55D and 55E govern the testing of drivers of motor vehicles for illicit drugs.

Relevantly for the purposes of the current proceeding, s 55E(2) of the Act provides as follows:

If a person undergoes a preliminary oral fluid test when required to do so under section 55D by a police officer or an enforcement officer and—
(a)the test, in the opinion of the police officer or enforcement officer in whose presence it is made, indicates that the person’s oral fluid contains a prescribed illicit drug; or
(b)the person, in the opinion of the police officer or enforcement officer, refuses or fails to carry out the test in the manner specified in section 55D(6)—

any police officer or, if the requirement for the preliminary oral fluid test was made by an enforcement officer, any police officer or any enforcement officer may require the person to provide a sample of oral fluid for testing by a prescribed device…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Andel v Carter

Details

AGLC: Andel v Carter [2025] VSC 433
Case: [2025] VSC 433
Decision Date: 23 July 2025

CaseChat Overview and Summary

The case of Andel v Carter involved an application for judicial review by the respondent, Carter, seeking to challenge a Magistrates’ Court decision to amend a charge under section 49(1)(eb) of the Road Safety Act 1986 (Vic). The charge was found to have identified the incorrect paragraph of section 55E(2) of the Act, raising questions about whether the statutory precondition to making the requirement to accompany in section 55E(2) of the Act is an essential element of the offence. Additionally, the court was required to consider whether the power to amend a charge under section 8 of the Criminal Procedure Act 2009 (Vic) could be exercised after the expiry of the limitation period and whether such an amendment would have the effect of creating a new offence.

The court examined the statutory precondition for the requirement to accompany in section 55E(2) of the Act and concluded that it was not an essential element of the offence. The court found that the original charge was defective due to the incorrect identification of the relevant paragraph, but the amendment did not constitute the creation of a new offence. The court considered relevant case law, including Director of Public Prosecutions v Kypri (2011) 33 VR 157, Fox v Director of Public Prosecutions (2022) 66 VR 223, Sheerin v Director of Public Prosecutions (2021) 95 MVR 291, and DPP Reference No 2 of 2001; Collicoat v DPP; Bell v Dawson (2001) 4 VR 55, in reaching its decision. The court concluded that the requirements of section 8(4) of the CPA were met, and therefore the application for judicial review was dismissed.

In light of the above findings, the court determined that the amendment did not have the effect of creating a new offence and the requirements of section 8(4) of the CPA were otherwise met. The court held that the original charge was defective but the amendment did not constitute a new offence. The application for judicial review was dismissed, and the amendment to the charge was upheld.

Orders