Bant v Grant
[2021] VSC 276
•19 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2020 04047
| BRANDON ASHLEY BANT | Plaintiff |
| v | |
| SENIOR CONSTABLE DIANE GRANT | First Defendant |
| and | |
| MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 April 2021 |
DATE OF JUDGMENT: | 19 May 2021 |
CASE MAY BE CITED AS: | Bant v Grant |
MEDIUM NEUTRAL CITATION: | [2021] VSC 276 |
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CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Charge of speeding contrary to r 20(1), Road Safety Road Rules 2017 (Vic) – Charge misdescribed location of offence; did not state time of day or description of vehicle – Whether charge could be amended to correctly describe location of offence – Whether charge sufficiently described nature of offence – Whether amendment had effect of charging new offence – Essential elements of offence of speeding contrary to r 20(1) – Whether time of day an essential element of offence – Effect of s 9(2), Criminal Procedure Act 2009 (Vic) – Whether charge contained particulars necessary to give reasonable information as to the nature of the charge – Whether reasonable information included description of vehicle – Road Safety Road Rules 2017 (Vic), r 20 – Criminal Procedure Act 2009 (Vic), ss 6, 8, 9, 32, Sch 1, cl 1(b).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr WJ Walsh-Buckley | Dwyer Legal |
| For the First Defendant | Ms EH Ruddle QC | Abbey Hogan, Solicitor for Public Prosecutions |
HER HONOUR:
On 21 September 2019, Brandon Bant was charged by Senior Constable Diane Grant with a speeding offence under r 20(1) of the Road Safety Road Rules 2017 (Vic). The charge-sheet filed by SC Grant at the Magistrates’ Court of Victoria at Warrnambool provided the following details of the charge:
The accused at Camperdown on 23/06/2019, being the driver of a vehicle, other than a heavy vehicle, on a length of road, namely, Princes Hwy between Rowans Road and Jubilee Park Rd, did drive at a speed which exceeded a speed-limit sign of 100 kilometres per hour, which applied to the accused for the length of road on which the accused was driving, by less than 35 kilometres per hour. Detected speed 129 km/h. Alleged speed 127 km/h.
Rule 20 of the Road Rules is headed ‘Obeying the speed-limit’, and contains five separate speeding offences. Mr Bant was charged under r 20(1), which provides:
A driver of a vehicle other than a heavy vehicle must not drive at a speed which exceeds the speed-limit applying to the driver for the length of road where the driver is driving by less than 35 kilometres per hour.
Penalty: In the case of a natural person, 10 penalty units;
In the case of a body corporate, 120 penalty units.
Mr Bant contested the validity of the charge, on the basis that it did not provide ‘reasonable information as to the nature of the charge’, as required by s 6(3) and Sch 1, cl 1(b) of the Criminal Procedure Act 2009 (Vic). He claimed that the charge was deficient in three respects:
(a) the place of the alleged offending, ‘Camperdown’, was wrong, because the length of the Princes Highway between Rowans Lane (not Rowans Road) and Jubilee Park Road is in Allansford, not Camperdown;
(b) the factual element of the ‘vehicle’ he was alleged to have driven was not included in the charge; and
(c) the time of the offence had been omitted from the charge.
The prosecution accepted that the charge misdescribed the place of the alleged offending. They sought to amend the charge by replacing ‘Camperdown’ with ‘Allansford’ and ‘Rowans Road’ with ‘Rowans Lane’.
On 14 August 2020, Magistrate Hawkins heard argument about the prosecution’s application to amend the charge, and Mr Bant’s objection to its validity. On 19 August 2020, her Honour gave leave to amend the charge in the manner sought by the prosecution, ruled that the charge as amended was valid, and provided written reasons for her ruling. As a result of the ruling, the magistrate made the following orders on 11 September 2020:
Adjourned to 9:30am on 01/02/2021 at WARRNAMBOOL MAGISTRATES’ COURT
THE PROSECUTION WILL FILE A COPY OF THE CHARGE AMENDED IN ACCORDANCE WITH MY DECISION OF 19 AUGUST 20.
CONTEST BOOKED TO COMMENCE ON 24 SEPTEMBER 2020 VACATED AS DEFENCE HAVE INDICATED THEY INTEND TO SEEK JUDICIAL REVIEW OF DECISION OF 19 AUGUST 20.
Mr Bant subsequently commenced this proceeding, seeking judicial review remedies in relation to her Honour’s ruling of 19 August 2020. The proceeding raises the following questions for determination:
(a) Was the amendment precluded by sub-ss 8(3) and (4) of the Criminal Procedure Act, because:
(i) the charge-sheet before the amendment did not sufficiently disclose the nature of the offence; or
(ii) the amendment had the effect of charging a new offence after the expiry of the applicable limitation period?
(b) Is the time of day an essential element of the offence of exceeding the speed-limit contrary to r 20(1) of the Road Rules, for the purposes of s 9(2)(a) of the Criminal Procedure Act?
(c) Is the charge invalid, because it does not contain particulars that are necessary to give reasonable information as to the nature of the charge, as required by s 6(3) and Sch 1, cl 1(b) of the Criminal Procedure Act, in relation to:
(i) the time of the alleged offence;
(ii) the vehicle in which it is alleged the offence was committed; and
(iii) if the charge could not be amended, the place of the alleged offence?
(d) If the charge could not be amended, or is invalid, what orders should the Court make?
I have determined those questions as follows:
(a) The amendment was not precluded by sub-ss 8(3) and (4) of the Criminal Procedure Act. The charge-sheet before the amendment sufficiently disclosed the nature of the offence, and the amendment did not have the effect of charging a new offence.
(b) Time is not an essential element of the offence of speeding under r 20(1) of the Road Rules. Section 9(2)(a) of the Criminal Procedure Act has the effect that the charge against Mr Bant is not invalid because it omits the time of day at which he exceeded the speed limit.
(c) The charge contained the particulars necessary to give Mr Bant reasonable information about the nature of the charge. The essential factual ingredients of the offence were alleged in the charge, as amended. The time of day and the description of the vehicle were not essential elements of the offence, and did not have to be included in the charge. The date of the alleged offence was stated in the charge, which was sufficient. In addition, the registration number of the vehicle was stated on the charge-sheet, which sufficiently identified the vehicle.
(d) The charge could be amended, and is valid. As a result, the proceeding must be dismissed.
These are my reasons for reaching those conclusions.
Criminal Procedure Act – Relevant provisions
A criminal proceeding is commenced by filing a charge-sheet in accordance with s 6 of the Criminal Procedure Act. Section 6(3) of the Criminal Procedure Act provides that a charge-sheet must be in writing, be signed by the informant personally, and comply with Sch 1.
Section 7 prescribes a time limit for commencing a proceeding for a summary offence, of 12 months after the date on which the offence is alleged to have been committed. There are some exceptions to this limitation period, none of which apply here.
Schedule 1 sets out what is required of charges on a charge-sheet or indictment, relevantly:
1 Statement of offence
A charge must—
(a)state the offence that the accused is alleged to have committed; and
(b)contain the particulars, in accordance with clause 2, that are necessary to give reasonable information as to the nature of the charge.
2 Statement of particulars
(1)Subject to subclause (2), particulars of the offence charged must be set out in ordinary language and the use of technical terms is not necessary.
(2)If a rule of law or a statute limits the particulars that are required to be given in a charge, nothing in this clause requires any more particulars than those required.
3 Statutory offence
(1) In this clause—
statutory offence means an offence created by an Act or subordinate instrument, or by a provision of an Act or subordinate instrument.
(2) For the purposes of clause 1(a), a statement of a statutory offence is sufficient if it—
(a) identifies the provision creating the offence; and
(b)describes the offence in the words of the provision creating it, or in similar words.
(3) If a statutory offence states—
(a) the offence to be committed in alternative ways; or
(b) any element or part of the offence in the alternative—
a charge may state the commission of the offence or the element or part of the offence in the alternative.
…
7 Descriptions generally
Subject to any other provision of this Schedule, if it is necessary to describe anything in a charge, it is sufficient to describe the thing in ordinary language in a manner that indicates with reasonable clarity the thing referred to.
Section 8 provides for the Magistrates’ Court to order the amendment of a charge-sheet, as follows:
Order for amendment of charge-sheet
(1)The Magistrates’ Court at any time may order that a charge-sheet be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.
(2)If a charge-sheet is amended by order under this section, the charge-sheet is to be treated as having been filed in the amended form for the purposes of the hearing and all proceedings connected with the hearing.
(3)An amendment of a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of the period, if any, within which a proceeding for the offence may be commenced.
(4)If a limitation period applies to the offence charged in the charge-sheet, the charge-sheet may be amended after the expiry of the limitation period if—
(a) the charge-sheet before the amendment sufficiently disclosed the nature of the offence; and
(b) the amendment does not amount to the commencement of a proceeding for a new offence; and
(c) the amendment will not cause injustice to the accused.
Section 9 provides:
Errors etc. in charge-sheet
(1)A charge-sheet is not invalid by reason only of a failure to comply with Schedule 1.
(2) A charge on a charge-sheet is not invalid by reason only of—
(a)omitting to state the time at which the offence was committed unless time is an essential element of the offence; or
(b)incorrectly stating the time at which the offence was committed; or
(c)stating the offence to have been committed on an impossible day or on a day that never happened.
Under s 32, an accused is entitled to receive from the informant a copy of the charge-sheet, as well as reasonable particulars of the charge.
The magistrate’s ruling
After setting out the charge, the magistrate summarised Mr Bant’s jurisdictional argument:
The accused submits that there is no jurisdiction for the court to hear the Road Safety Road Rules 2017 RR 20(1) charge and it must be struck out because it is invalid as it fails to provide “reasonable information as to the nature of the charge” in breach of the mandatory provisions of the CPA[1] s 6(3) read with obligatory requirements of contents of charges in Sched 1 Cl 1, 2 and 3 of the CPA as recently judicially interpreted. The 12 month limitation period to commence a summary criminal [proceeding] under s 7(1) CPA to re-issue or apply to amend the charge expired 23/06/2020.
[1]Criminal Procedure Act 2009 (Vic).
In short, the alleged defects are submitted to be:
1.“Vehicle” is insufficient, it must be proved in the charge that the vehicle referred to falls within the statutory definition;
2. The time of the offence has been omitted from the charge; and
3. The place of the offending, Camperdown, is wrong, Furthermore, there is no “Rowans Road”, it should be Rowans Lane.
This third point is conceded by the Prosecution and they seek to amend the charge accordingly, to replace “Camperdown” with “Allansford”, and “road” with “lane”.
The magistrate dealt first with the prosecution’s application to amend the charge, noting that the 12 month limitation period for bringing a proceeding for an offence against r 20(1) of the Road Rules had expired, and setting out s 8 of the Criminal Procedure Act. She identified the issue for determination as ‘whether the proposed amendment to the location of the alleged offence constitutes the commencement of a proceeding for a new offence, or simply is it an amendment of the existing offence?’ Her conclusion was that it did not involve commencing a proceeding for a new offence:[2]
I do not accept Counsel’s submissions that the instant RR20(1) charge does not include all “particulars...necessary to give reasonable information as to the nature of the charge”. Unlike the cases cited by Defence, the prosecution does not seek to amend the charge to add detail, they seek to correct a clear mistake in the location the offence was said to have been committed. In my view, the charge sheet before the amendment does sufficiently disclose the nature of the offence as required by sch 1(b), it just gets the location wrong.
The amendment does not create a new offence, it is the same speed on the same day, driving the same vehicle on the same length of road at the point where the accused was intercepted. This is not a charge which arose from a speed camera where the alleged offence was not brought to the attention of the accused for many weeks. The accused was intercepted by police on that day. He is not “taken by surprise” (See generally discussion about the power to amend a charge: Sutton v R (2015) 47 VR 496; [2015] VSCA 251, [95]).
Location is not an essential ingredient of the offence. It is merely included for procedural fairness.
Mr Bant would have been well aware that the location in the charge sheet did not match the circumstances he experienced. Accordingly, no “new” offence is charged, it is a mere correction of an error made on the charge sheet.
It does not cause any injustice to the accused. I allow the amendment of the charge to delete “Camperdown” and replace with “Allansford” and to delete “Rowans Road” and replace it with “Rowans Lane”.
[2]Emphasis in original.
Turning to the invalidity argument, the magistrate noted the requirements set out in cll 1, 2 and 3 of Sch 1 of the Criminal Procedure Act, concerning the particulars necessary to give reasonable information as to the nature of a charge. Her Honour set out those provisions, referred to the Explanatory Guide to the Criminal Procedure Act, and quoted at length from the decision of this Court in Wells v Stillman.[3] She did not consider that Sch 1, cl 1(b) of the Criminal Procedure Act or the authorities applying it had changed what is required by way of particularisation in a charge for the charge to be valid:
Although cl 1(b) of sch 1 of the CPA has affected the common law by supplying a statutory test for determining the adequacy of particulars furnished as part of a charge, I do not interpret the decisions of the Court of Appeal in Baiada[4] or that of Justice Quigley in Wells v. Stillman as requiring a greater degree of particularisation than was previously required.
The fault in the charge before Justice Quigley was just as significant a breach of the common law requirements as it was found to be of the statutory requirements. …
[3][2020] VSC 51 (Wells).
[4]Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344.
The magistrate then considered, and rejected, Mr Bant’s arguments that the charge was deficient because it did not give sufficient particulars of the vehicle concerned, and did not state the time of day that he was alleged to have exceeded the speed limit. She explained her conclusion as follows:
Counsel has submitted that details such as the specific time of day needs to be included. I have not been referred to any authority that indicates that the time of day need be included in a speeding charge. In Victoria the time of the offence has always been understood to mean the date of the alleged offence, or a between dates time frame if a specific date cannot be nominated, unless there is something relevant to the charge or an aspect of the charge that requires time specificity.
The charges in this case used the particularisation that has been used for many decades in Victoria to allege such offences. They allege the town (albeit incorrect) and the date of the alleged offence, as well as the substance of the allegation, largely using the words of the section of the Road Safety Act creating the offence.
Whilst the accused was undoubtedly confused that the offence with which he was charged was at a location some 40 minutes’ drive away from where he was intercepted by police, I note that this is not a traffic camera offence and he would have been well aware that the location specified on the charge was a mistake.
I conclude that Mr Bant had sufficient particulars of what offence is alleged against him, and when it is alleged to have occurred.
“Vehicle” is not a broad ranging, ill-defined concept like “police information”. It is clearly defined in legislation and commonly understood by the general population. Mr Bant was driving a Toyota Hiace Van and would have well understood that it fell within the definition of “vehicle”. I do not consider it is necessary for a charge to detail what is proposed by Defence, and therefore do not find the charge is accordingly invalid on this basis.
In this case the charge (as amended) I conclude does adequately meet the requirements of the CPA and Schedule 1. It indicates the date and place of the alleged offending, the legal nature of the alleged offending and the essential factual elements of the offence.
In my view, Mr Bant on reading the charge would reasonably know what offence he had allegedly committed, when and where he had allegedly committed it, what the offence involves, to a sufficient degree to be aware of the case against [him] and answer it.
On that basis, the magistrate dismissed Mr Bant’s jurisdictional argument.
Could the charge be amended?
It was common ground that, by August 2020, the applicable 12 month limitation period had expired. The charge-sheet could therefore only be amended under s 8(4) of the Criminal Procedure Act if it already sufficiently disclosed the nature of the offence, if the amendment did not amount to charging a new offence, and if it would not cause injustice to the accused.
Mr Bant submitted that the charge-sheet could not be amended because it did not sufficiently disclose the nature of the offence charged. He said that the nature of the offence had to appear from the charge-sheet itself, and that the prosecution could no longer rely on the contents of the preliminary brief, as had been permissible under the former s 50 of the Magistrates’ Court Act 1989 (Vic).[5] He submitted that there was no difference between the requirement in s 8(4)(a), that the charge-sheet sufficiently disclose the nature of the offence, and the requirement in Sch 1, cl 1(b), that the charge give reasonable information as to the nature of the charge. The effect of both provisions was that the ‘conduct making up the actual ingredients of the offending’[6] has to appear from the charge-sheet, in order for the charge to be amended after the expiry of the limitation period.
[5]Cf Director of Public Prosecutions v Kypri (2011) 33 VR 157, [41] (Nettle JA).
[6]Baiada, [16] (Ferguson and McLeish JJA). See also John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508, 528–9 (Brennan J).
Mr Bant relied on the following authorities:
(a)Glenister v Magistrates’ Court of Victoria,[7] in which a magistrate had ruled that charges brought by the Victorian WorkCover Authority under the Occupational Health and Safety Act 2004 (Vic) were invalid because they did not provide reasonable information as to the nature of the charges, and refused leave to amend the charges. Justice Ginnane held that some charges did not contain the essential elements of the offence charged, and so did not sufficiently disclose the nature of the offence and could not be amended under s 8(4) of the Criminal Procedure Act.[8]
(b)Fazal v Beauchamp,[9] in which Beale J held that the power of amendment in s 8(1) was sufficiently broad to cover both an amendment to a charge which does not disclose an offence known to law and an amendment to one that does. His Honour observed that there are ‘sensible restrictions’ on this broad power of amendment, sufficient to prevent its abuse.[10]
(c)Daly v Karamoshos,[11] in which Croucher J considered but did not decide whether there was any difference between the common law rule against an amendment out of time that would result in a ‘new and different charge’[12] and the prohibition in s 8(3) of an amendment ‘that has the effect of charging a new offence’ after the expiry of the limitation period. His Honour held:[13]
It seems plain enough that, in some cases, an amendment alleging an offence separate from the original offence charged will be sufficient to have “the effect of charging a new offence” within the meaning of s 8(3). …
[7][2014] VSC 265 (Glenister). An appeal concerning the validity of a further charge was upheld by the Court of Appeal in Baiada.
[8]Glenister, [100]-[101], [163].
[9][2020] VSC 546 (Fazal). An application for leave to appeal was refused in Fazal v Beauchamp [2021] VSCA 103.
[10]Fazal, [29]-[31]. The amendment at issue in Fazal was ordered within the 12 month limitation period, so that there was no question whether it had the effect of charging a new offence under s 8(3) or (4).
[11][2020] VSC 506 (Daly).
[12]Daly, [140]-[141]; see also, Kypri, [41] (Nettle JA); Bchinnati v Connolly [2014] VSC 623, [9].
[13]Daly, [141].
Mr Bant’s position was that the charge-sheet did not sufficiently disclose the nature of the offence because it did not include particulars of the time of day or the vehicle, and gave particulars of a non-existent location. In addition, he submitted that the amendment ordered by the magistrate had the effect of charging a new and separate offence, alleged to have been committed in Allansford rather than Camperdown. He argued that the fact that they are the same offence in law – that is, r 20(1) – did not mean that they are the same offence in fact.
Mr Bant did not submit that the amendment caused him any injustice, and should not have been ordered for that reason. There was no suggestion that there was any real confusion about where the offence was alleged to have occurred, for example because there was a stretch of road between Rowans Road (or Lane) and Jubilee Park Road in Camperdown, as well as in Allansford.
The prosecution submitted that the amendment was permissible, because there was sufficient information in the charge-sheet to disclose the nature of the offence charged, and because the amendment did no more than correct errors in the charge. It relied on the Court of Appeal’s reasoning in Gigante v Hickson,[14] which involved the amendment of the location alleged in a drink-driving charge:[15]
That the place of offending was not essential or material in the instant case does not mean that it was not an important particular to which the appellant was entitled as a matter of procedural fairness. But he did not need to ask for it as it was supplied in the amendment. If he had been misled by the original charge or if the amendment had caught him by surprise, he would, other things being equal, have been entitled to an adjournment, but no such prejudice or embarrassment was suggested.
This is not a case where the original charge was defective in that it failed to allege an offence known to the law or was incomplete, or where it contained a latent ambiguity or duplicity. It merely named a suburb which the evidence to be led would show to be erroneous. Since the suburb was not essential to the offence, the substitution of a different suburb did not amount to charging a different offence. The offence remained the same, though a particular (included in the charge) was altered.
[14](2001) 3 VR 296 (Gigante).
[15]Gigante, [15]-[16].
In this case, the prosecution argued, the suburb and the nearest cross-roads were not elements of the offence of speeding contrary to r 20(1) of the Road Rules. All that had to be alleged was a length of road and the speed limit attaching to the length of road. The charge-sheet sufficiently disclosed the nature of the offence. The time of day, the suburb and nearest cross-roads, and the description of the vehicle were not essential elements of the offence;[16] they were particulars that might be provided under s 32 of the Criminal Procedure Act.
[16]Relying on Foster v Harris [2012] VSC 637.
The prosecution argued that the phrase ‘sufficiently disclosed the nature of the offence’ in s 8(4)(a) had a different meaning from ‘reasonable information as to the nature of the charge’ in Sch 1, cl 1(b). However, the difference was not explored, because both tests were said to be satisfied by the original charge-sheet in this case. It further argued that Mr Bant’s approach would render the power of amendment in s 8(4) otiose if it could not be used to correct small errors, as had occurred in this case.
Consideration
In order to determine whether the charge-sheet sufficiently disclosed the nature of the offence, and whether the amendment had the effect of charging a new offence, it is first necessary to identify the ‘essential factual ingredients’[17] of the offence of speeding under r 20(1) of the Road Rules. The essential elements of an offence are to be distinguished from other facts that the prosecution must establish in order to prove the charge, which may be provided as particulars.[18]
[17]John L Pty Ltd, 528–9 (Brennan J).
[18]DPP Reference No. 2 of 2001 (2001) 4 VR 55, [19], [23], [30] (Charles JA).
The distinction has been drawn in three earlier decisions of this Court: Ciorra v Cole,[19] Director of Public Prosecutions v Kirtley,[20] and Foster v Harris.[21] All three decisions concerned an earlier version of r 20(1), which read as follows:[22]
[19](2004) 42 MVR 547 (Ciorra).
[20][2012] VSC 78 (Kirtley).
[21][2012] VSC 637.
[22]In Ciorra and Kirtley the charge was under r 20(1) of the Road Safety (Road Rules) Regulations 1999 (Vic); in Foster the charge was under r 20(1) of the Road Safety Road Rules 2009 (Vic).
Obeying the speed-limit
A driver must not drive at a speed over the speed-limit applying to the driver for the length of road where the driver is driving.
The penalties specified varied depending on whether the driver was driving a large vehicle, or a vehicle other than a large vehicle.[23]
[23]The Road Safety (Road Rules) Regulations 1999 (Vic) differentiated between large vehicles and other vehicles; the Road Safety Road Rules 2009 (Vic) imposed higher penalties for drivers of heavy vehicles.
The charge at issue in Ciorra was framed in these terms:
The defendant at McCrae on 6/4/2003 being the driver of a vehicle on a highway namely the Mornington Peninsula Freeway did exceed 100 kilometres per hour. Alleged speed was 145 km/h.
The charge was said to be invalid for reasons including that it did not expressly state that the defendant had exceeded the speed limit and did not specify by what means the applicable speed limit was determined.
Justice Redlich dismissed that argument, holding that it was sufficient that a charge alleging a breach of r 20 employ the words, or words similar to the words, used in r 20. His Honour held that ‘the essence of an offence under Road Rule 20 is that a driver has driven at a speed over the speed limit’ and that the speed limit said to have been exceeded is an essential factual ingredient of the offence. It was not necessary that the basis on which the speed limit was to be determined was set out in the charge – that was a fact that the prosecution had to prove, not an element of the offence. The offence and its essential elements were sufficiently identified in the charge.[24]
[24]Ciorra, [78]-[82].
In Kirtley, the charge was formulated as follows:
The defendant at Rupanyup on 15/06/09 being the driver of vehicle on the length named Wimmera Highway did drive at speed over the speed limit applying for the length of road to which a speed limit sign of 100km/h applied between Marnoo and Rupanyup. Detected speed 158km/h. Alleged speed 156km/h kph.
Justice J Forrest accepted the submission of the Director of Public Prosecutions that the two essential ingredients of a charge under r 20 are, first, driving a motor vehicle and, second, exceeding the speed limit.[25] His Honour held that it was ‘patent that the essential ingredients of his driving of a vehicle over the prescribed speed limit were contained in the charge and the other details set out in the charge informed him satisfactorily of the circumstances of the offence’.[26] The charge was not invalid because it did not also specify that the speed limit was applicable to the driver – on any sensible interpretation, the charge gave the defendant sufficient information to know that it was his driving that exceeded the applicable speed limit.[27]
[25]Kirtley, [18], [21]-[24].
[26]Kirtley, [26].
[27]Kirtley, [27].
The charge in Foster was as follows:
The accused at Myrtleford at 9.9.10, being the driver of a vehicle on a length of road, named Prince St, in a school zone, to which a school zone sign indicating 40 kilometres per hour applied, did drive over the speed-limit applying to the driver for the length of road where the driver is driving, between O’Donnell Ave and William Street. Detected Speed 80 kph. Alleged Speed 78 kph.
The accused contended that the charge was defective because it failed to specify the time when the speed zone applied or the time when the alleged offence occurred.
Justice Williams held that time was not an essential ingredient of the offence:[28]
Ciorra and Kirtley establish that the two essential ingredients of the charged offence to be included in the charge are the alleged facts that the vehicle was driven by the appellant and that she drove it over the speed-limit applicable to her on that particular section of Prince Street. It was not necessary to include in the charge express reference to the factual basis on which the applicable speed-limit was to be determined, such as that she was driving on a declared school day or during the period referred to on the school zone sign. Such matters, and other relevant requirements of the Rules might have been the subject of requests of particulars of the alleged applicability of the 40 km per hour speed-limit to the appellant.
[28]Foster [19].
Before the re-enactment of the Road Rules in 2017, the essential elements of the offence of speeding under r 20(1), identified in Ciorra, Kirtley and Foster, were:
(a) the accused drove a vehicle;
(b) on a length of road; and
(c) exceeded the speed limit applying for that length of road.
The location of the length of road, the basis for determining the applicable speed limit, and the time at which the accused exceeded the speed limit were clearly not essential factual ingredients of the offence. Where relevant, those matters might be the subject of particulars.
Rule 20(1) now provides:
A driver of a vehicle other than a heavy vehicle must not drive at a speed which exceeds the speed-limit applying to the driver for the length of road where the driver is driving by less than 35 kilometres per hour.
Consistent with the analysis in Ciorra, Kirtley and Foster, the essential elements of the offence of speeding under r 20(1) in its current form are:
(a)the accused drove a vehicle, other than a heavy vehicle;
(b)on a length of road; and
(c)exceeded the speed limit applying for that length of road, by less than 35 kilometres per hour.
An additional aspect of the first element is that the vehicle is ‘other than a heavy vehicle’. It remains the case that the location of the length of road and the time of the alleged speeding are not essential factual ingredients of the offence. Rather, these matters are properly characterised as particulars of the offence, being the particular circumstances of the offence that the accused is alleged to have committed.
It follows that the charge in its original form sufficiently disclosed the nature of the offence with which Mr Bant was charged. It included all of the essential elements of the offence under r 20(1). Matters such as the location of the length of road, the time of day, or the description of the vehicle, are particulars rather than essential elements of the offence under r 20(1).
As to whether the amendment had the effect of charging a new offence, the Court of Appeal recently considered the meaning of that phrase in Fazal v Beauchamp:[29]
Section 8(3), and the use of the phrase ‘new offence’, arises in a particular context and is designed to prevent an amendment that would infringe a limitation period. The phrase ‘new offence’ is used to distinguish between an amendment to a charge already on the charge-sheet, including an amendment that overcomes a defect in the formulation of an existing charge, and an amendment that introduces a new offence. The phrase ‘new offence’ does not carry with it any general limitation on the scope of the power to amend in s 8(1) and merely informs the exercise of the power in the context of limitation periods.
[29][2021] VSCA 103, [22].
It is clear that the amendment ordered by the magistrate did not have the effect of charging Mr Bant with a new offence. The essential elements of the offence remained the same – that Mr Bant drove a vehicle, other than a heavy vehicle, on the Princes Highway, at a speed that exceeded the speed limit of 100 kilometres per hour, by less than 35 kilometres per hour. The location of the alleged offence and the names of the nearest cross-roads were no more than particulars of the offence, and there was no obstacle to amending them to correct errors after the expiry of the limitation period.
The learned magistrate was entirely correct in her conclusion that the amendment did not create a new offence, and was a mere correction of an error made on the charge-sheet. She was also correct in her conclusion that location is not an essential ingredient of the offence, and was merely included for procedural fairness.
Mr Bant’s challenge to the order amending the charge fails. The amendment was not precluded by sub-ss 8(3) or (4) of the Criminal Procedure Act.
Is the time of day an essential element of the offence charged?
Mr Bant contended that the charge was defective because the time of the offence had been omitted from the charge. He relied on what was said by Latham CJ in Johnson v Miller,[30] that a complaint is sufficient if ‘it sets forth the acts which are relied upon as constituting the offence with such a reference to time and place as identifies those acts’.[31]
[30](1937) 59 CLR 467 (Johnson v Miller).
[31]Johnson v Miller, 479 (Latham CJ); see also 486 (Dixon J). Mr Bant also relied on R v Magistrates’ Court at Heidelberg [1976] VR 680, 682, although that decision concerns the entitlement to particulars of a charge, and not the sufficiency of the charge.
This argument encountered a difficulty in the form of s 9 of the Criminal Procedure Act, which provides that certain errors in a charge-sheet do not invalidate it.
The prosecution submitted that the effect of s 9(2)(a) is that the charge cannot be invalid because it does not state the time of day at which Mr Bant is alleged to have been speeding, because time is not an essential element of the offence under r 20(1). Mr Bant conceded that time is not an essential element of that offence. That concession was properly made, based on the authority of Foster.[32]
[32]See [34]-[35] above.
However, Mr Bant submitted that the effect of the words ‘by reason only of’ in s 9(2) was that, even where time is not an essential element of the offence, a charge will be invalid if it was defective for some other reason. This submission was not easy to follow. I understood it to be as follows:
(a)The requirement in Sch 1, cl 1(b) of the Criminal Procedure Act for a charge to contain the particulars that are necessary to give reasonable information as to the nature of the charge, applies in addition to the common law requirements for a valid charge.[33]
(b)The common law requires that the time, place and manner of the offending be stated in the charge.[34]
(c)Despite s 9(2)(a), reasonable information as to the nature of a charge under r 20(1) includes the time of day at which the offence is alleged to have occurred.
[33]Relying on Baiada, [155]-[156] (Robson AJA).
[34]Relying on Johnson v Miller, 479 (Latham CJ), 486 (Dixon J); and Smith v Moody [1903] 1 KB 56, 63.
I cannot accept that submission, for several reasons.
First, the requirement in Sch 1, cl 1(b) of the Criminal Procedure Act that a charge provide reasonable information as to the nature of the charge supplants the common law as to the requirements of a valid charge. This was made plain by the majority in Baiada, who held that the common law is affected by cl 1(b), which ‘supplies a statutory test for determining the adequacy of the particulars furnished as part of the charge’.[35] While cl 1(b) is now ‘the governing test’, it has much in common with the approach of the common law, and authorities such as Johnson v Miller and Smith v Moody[36] are to be borne in mind in determining whether the particulars furnished with a charge provide reasonable information as to the nature of the charge.[37]
[35]Baiada, [13] (Ferguson and McLeish JJA); cf [155]-[156] (Robson AJA). See also Glenister, [64], and Wells, [17]; cf Southgate Management Pty Ltd v Nitschke [2018] VSC 236, [64]-[67].
[36][1903] 1 KB 56.
[37]Baiada, [14]-[16] (Ferguson and McLeish JJA).
Second, as Quigley J observed in Wells, the ‘common law requirement for adequate particulars to be included in a charge did not have a single formula’.[38] In Baiada, Ferguson and McLeish JJA canvassed the various ways in which the requirement has been expressed over time:[39]
… In Johnson v Miller, Dixon J referred to ‘the necessity of specifying the time, place and manner of the defendant’s acts or omissions’. In Smith v Moody, on which the High Court relied in that case, Lord Alverstone CJ referred to ‘the old rule of criminal practice which requires that fair information and reasonable particularity as to the nature of the offence must be given’. Wills J said that ‘whatever is necessary to show that the person convicted has done something which brought him within the words of the statute’ must be specified, and spoke later of the need for sufficiency ‘with respect to the ingredients of the offence’ committed. More modern formulations have looked to ‘the nature of the offence and the manner in which it had been committed’, the ‘substance of the charge’ and ‘the essential factual ingredients’ of the offence.
[38]Wells, [16].
[39]Baiada, [15] (Ferguson and McLeish JJA) (citations omitted).
Given this diversity of judicial formulations, I do not understand the common law to require that the time of the alleged offending must be stated in every charge, regardless of the offence charged. Whether that is necessary depends on whether time is an essential element of the offence in question.
Third, even if the common law did require the time of the offence to be stated in every charge, that requirement is displaced by the express language used by Parliament in s 9(2)(a) of the Criminal Procedure Act. The unambiguous words of the provision make it clear that, unless time is an essential element of the offence, omitting to state the time at which the offence was committed does not invalidate the charge.
Time is not an essential element of the offence of speeding under r 20(1), and the charge against Mr Bant is not invalid because it omits the time of day at which he exceeded the speed limit. As the magistrate found, reasonable information about the time of the offence is given by stating the date of the offence in the charge.
Is the charge invalid?
Mr Bant’s central argument was that the charge is invalid because it does not contain particulars that are necessary to give reasonable information as to the nature of the charge, as required by s 6(3) and Sch 1, cl 1(b) of the Criminal Procedure Act. As mentioned, he argued that the charge is deficient because it does not provide particulars of the time of day when the offence is alleged to have been committed, of the vehicle concerned, and (if the charge could not be amended), the place where he is alleged to have been speeding.
I have already determined that the charge could be amended, and that the omission of the time of day from the charge did not invalidate it. That leaves Mr Bant’s argument that the charge did not provide reasonable information about the charge because it omitted a description of the vehicle.
Mr Bant submitted that it must be proved that the ‘vehicle’ referred to in the charge falls within the statutory definition of r 20(1), and that without proof of this element of the charge, the offence cannot be proved. He referred to the definitions of ‘motor vehicle’ and ‘vehicle’ in s 3(1) of the Road Safety Act 1986 (Vic), as follows:
motor vehicle means a vehicle that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle but does not include—
(a) a vehicle intended to be used on a railway or tramway; or
(b)a motorised wheel-chair capable of a speed of not more than 10 kilometres per hour which is used solely for the conveyance of an injured or disabled person; or
(c)a vehicle that is not a motor vehicle by virtue of a declaration under subsection (2)(b);
vehicle means a conveyance that is designed to be propelled or drawn by any means, whether or not capable of being so propelled or drawn, and includes bicycle or other pedal-powered vehicle, trailer, tram-car and air-cushion vehicle but does not include railway locomotive or railway rolling stock;
He also referred to the inclusive definition of ‘vehicle’ in Rule 15 of the Road Rules:
A vehicle includes—
(a) a motor vehicle, trailer and tram; and
(b) a bicycle; and
(c)an animal-drawn vehicle, and an animal that is being ridden or drawing a vehicle; and
(d) a combination; and
(e)a motorised wheelchair that can travel at over 10 kilometres per hour (on level ground)—
but does not include another kind of wheelchair, a train, a wheeled recreational device, a wheeled toy or an electric personal transporter.
Note
Various terms mentioned in this rule are defined in the dictionary. Motor vehicle is defined in the Road Safety Act 1986.
He submitted that reasonable information about the charge against him must include a description of the facts going to make up the element of ‘vehicle’ – in this case a ‘silver Toyota Hiace Van’ as well as the vehicle’s registration number. He relied on two authorities in support of this submission:
(a)Wells, which involved a charge of accessing of police information without reasonable excuse, contrary to s 227(1) of the Victoria Police Act 2013 (Vic). Justice Quigley held that the accused was entitled ‘to know what is the material and particular information which forms the subject of the offence’, and that the charge was invalid because it did not disclose that information.[40]
(b)Southgate Management Pty Ltd v Nitschke,[41] which involved charges of handling and selling unsafe food, contrary to s 11 of the Food Act 1984 (Vic). The charges described the relevant food as ‘egg mayonnaise’ or ‘cocktail sauce’. Justice Priest held that the charges provided sufficient information of ‘the legal nature of the relevant offences, together with their essential factual elements’, and were valid, although Southgate would be entitled to further particulars of the food the subject of the charge.[42]
[40]Wells, [75]-[76].
[41][2018] VSC 236.
[42]Southgate, [71]; see also [74].
The prosecution met this submission at the factual level, pointing out that the charge-sheet provided the registration number of the vehicle. The charge-sheet was in the form prescribed by the Magistrates’ Court Criminal Procedure Rules 2009 (Vic), which included a space for a vehicle registration number. This sufficiently identified the vehicle, about which there could be no confusion.
The prosecution further submitted that it is not necessary to describe the vehicle in the charge, because the vehicle’s description is not a factual ingredient of the offence.
Mr Bant accepted that the charge-sheet provided the vehicle’s registration number, as required by the prescribed form. Nevertheless, he persisted in his submission that it was necessary to also state in the charge the colour, make, model, and preferably year of the vehicle. At the same time, he conceded that the description of the vehicle was not an element of the offence of speeding under r 20(1), and that it was only necessary to prove that the accused was driving a vehicle.[43]
[43]Transcript 21:27-22:29.
Consideration
In considering this sometimes confusing submission, I have borne in mind the need to distinguish the essential elements of an offence from other facts that the prosecution must establish in order to prove the charge, which may be provided as particulars.[44] One of the essential elements of the offence of speeding under r 20(1) is that the accused drove a vehicle, other than a heavy vehicle.[45] The colour, make, model, year, and registration number of the vehicle are not essential ingredients of the offence. To the extent that those matters must be established in order to prove a charge, or to give the accused a fair opportunity to defend the charge, they can be the subject of particulars.
[44]DPP Reference No. 2, [19] (Charles JA).
[45]See [38] above.
The charge alleges that Mr Bant was the driver of a vehicle, other than a heavy vehicle. That is sufficient to give him reasonable information about the nature of the charge against him.
Further, a charge is to be interpreted in the manner a reasonable defendant would understand it, giving reasonable consideration to the words of the charge, in their context.[46] That context includes the charge-sheet on which the charge appears. The charge-sheet in this case includes the registration number of the vehicle that Mr Bant is alleged to have driven over the speed limit. A reasonable defendant, reading the charge in that context, would have no difficulty understanding which vehicle was the subject of the charge.
[46]DPP Reference No. 2, [40] (Charles JA); Kypri, [16] (Nettle JA).
There is a further question raised by Mr Bant’s invalidity argument that should be mentioned. Mr Bant’s case in this Court and in the Magistrates’ Court was premised on an assumption that, if the charge on the charge-sheet was defective, the entire proceeding was invalid and the Magistrates’ Court had no jurisdiction. That assumption appeared to me to be misplaced.
A criminal proceeding is commenced by filing with a registrar of the Magistrates’ Court a charge-sheet that complies with Sch 1 of the Criminal Procedure Act.[47] One of the requirements of Sch 1 is that the charge contain the particulars that are necessary to give reasonable information as to the nature of the charge. As discussed, this is now the governing test for the sufficiency of a charge, and the common law authorities are now informative rather than determinative.[48]
[47]Criminal Procedure Act, s 6(1), (3).
[48]See [49] above.
Failure to comply with a statutory requirement does not necessarily result in invalidity. Whether it does ‘depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply’ with the requirement, ‘by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition’.[49]
[49]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [91] (McHugh, Gummow, Kirby and Hayne JJ).
Section 9(1) of the Criminal Procedure Act expressly provides that a charge-sheet is not invalid by reason only of a failure to comply with Sch 1. This would appear to be a clear expression of legislative intention that a charge-sheet that does not comply with Sch 1, including cl 1(b), is not invalid, and nor is the proceeding commenced by that charge-sheet. The broad power of amendment in s 8 is a further indication that a defect in the formulation of a charge is not intended to invalidate the entire proceeding.
On the other hand, Mr Bant’s assumption reflects the common law position, and is consistent with the approach taken in a number of decisions of this Court since the commencement of the Criminal Procedure Act.[50] None of those decisions addressed the question of whether the legislature intended that non-compliance with Sch 1 of the Criminal Procedure Act would result in the invalidity of a charge-sheet and the proceeding it commenced.
[50]See e.g. Baiada, [56], [157] (Robson AJA); Southgate, [16]-[17]; Wells, [15].
The question appears to me to be a significant one, given the frequency with which the Magistrates’ Court’s jurisdiction to hear a summary offence is challenged because of a claimed defect in the formulation of a charge. However, I did not hear full argument on the question, and it is not necessary to determine it in this case given the other conclusions I have reached.
Disposition
The charge could be amended, and is valid. The proceeding must be dismissed.
Mr Bant commenced this proceeding a few days outside the 60 day time limit prescribed by r 56.02(1) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), due to difficulties his solicitor encountered with the Court’s electronic filing system. He sought an order under r 56.02(3), which enables time to be extended in special circumstances.
The prosecution opposed an extension of time, on the basis that the proceeding lacked merit and must fail. I accept that submission. Mr Bant sought to raise in this proceeding a series of technical arguments that were entirely without merit. His arguments were either contrary to authority, or not open on the facts, or both. The magistrate’s ruling on those arguments was correct, and was supported by detailed and coherent reasons. There was no hint that the way in which the charge was framed or amended gave rise to any injustice to Mr Bant. In my view, justice between the parties would not be served by extending time.
I will hear the parties on the question of the costs of the proceeding.
Postscript
After these reasons for judgment were written, but before they were published, Beale J gave judgment in Director of Public Prosecutions v Fox.[51] That case concerned a charge of speeding contrary to r 20(2) of the Road Rules. The accused argued before the Magistrates’ Court that the charge was defective because it failed to specify the time of the offence, the kind of vehicle, and the basis of the speed limit, and incorrectly described the place of the offence. The magistrate dismissed the charge on the basis that it did not state the time and misdescribed the place of the offence. The prosecution appealed.
[51][2021] VSC 226 (Fox).
Justice Beale allowed the appeal, quashed the decision of the magistrate, and remitted the matter to the Magistrates’ Court to be determined in accordance with law. His Honour held that:
(a)The Criminal Procedure Act has not changed the substance of the law in relation to the particulars that must be included in a charge; [52]
(b)Johnson v Miller has not been understood as establishing a general rule that, for a charge to be valid, it must state the time of day that an alleged offence occurred;[53]
(c)Applying Foster, which was correctly decided, it is not necessary for a valid speeding charge to particularise the time of day of the driving;[54]
(d)The inaccuracy in the description of the place of the driving did not render the charge invalid. The inaccuracy was a minor error that ought to have been amended under s 8, consistent with Gigante v Hickson.[55]
[52]Fox, [28]-[31].
[53]Fox, [32].
[54]Fox, [33].
[55]Fox, [35]-[36].
These conclusions accord entirely with the conclusions I had already reached, without having had the advantage of Beale J’s analysis. The reasoning in Fox confirmed my view that the arguments pressed on behalf of Mr Bant in this proceeding were without merit.
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