JUDGE:	T. FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2014
DATE OF JUDGMENT:	10 December 2014
CASE MAY BE CITED AS:	Bchinnati v Connolly & Ors
MEDIUM NEUTRAL CITATION:	[2014] VSC 623

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CRIMINAL LAW – Appeal on a question of law from orders of the Magistrates’ Court – Accused charged with various driving offences – Three charges amended with the effect of charging new charges more than twelve months after their commission – Accused did not give written consent to amendments – Accused convicted and sentenced on all charges, including the purportedly amended charges – Court erred in amending the charges and that error was involved in the final orders for conviction and sentence – Appeal allowed – Appropriate form of orders – Criminal Procedure Act 2009, ss 7, 8, 272.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C. Boyce SC with Ms G. Connolly	Ian G Hone
For the First, Second and Third Respondents	Mr C. Carr	Office of Public Prosecutions

HIS HONOUR:

Introduction

On 28 October 2013 Omar Bchinnati, the appellant, appeared before the Magistrates’ Court at Broadmeadows charged with eight driving offences. At that hearing three of the charges were purportedly amended with the effect of charging new offences more than twelve months after their alleged commission. After the appellant entered pleas of guilty to all charges the presiding Magistrate purportedly convicted him on each charge and imposed an aggregate fine of $3000. Did the Court err when it amended the charges?

Background

The consolidated charge report produced in the Magistrates’ Court on 28 October 2013 sets out the eight charges as they came before that Court on that date:[1]
[1]Second Affidavit of Ian George Hone, dated 24 September 2014, [5] and Annexure ‘B’. The table now set out is adapted from that consolidated charge report.

Charge Description Date of Offence Informant

1 Drive whilst disqualified. 15/12/2011 CONNOLLY

2 Use unregistered motor vehicle – highway. 15/12/2011 CONNOLLY

3 Drive whilst authorisation suspended. 28/12/2011 SHAWYER

4 Drive whilst authorisation suspended. 18/01/2012 HARRIS

5 Exceed 90 speed limit sign-by 45k or more. 18/01/2012 HARRIS

6 Unlicensed driving. 11/10/2012 MAGNAVACCA

7 Use unregistered motor vehicle – highway. 11/10/2012 MAGNAVACCA

8 Unlicensed driving. 19/05/2013 ZIEBELL

The charges the subject of this appeal are charges 1, 3 and 4. Mr Ian Hone, solicitor for the appellant, deposes that these charges were being defended on the basis that the appellant was not disqualified or suspended from driving at the relevant times.[2] It is common ground between the parties that these charges were the subject of negotiation between Senior Counsel for the appellant and the police prosecutor. Evidently this negotiation was successful and when the matter was called on for hearing the prosecutor sought to amend the…

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 Bchinnati v Connolly

Details

AGLC: Bchinnati v Connolly [2014] VSC 623
Case: [2014] VSC 623
Decision Date: 10 December 2014

CaseChat Overview and Summary

The case before the court involved the appellant, Bchinnati, who was charged with various driving offences. The respondent, Connolly, sought to amend the charges, effectively changing them to new charges that occurred more than twelve months prior to the amendment. The appellant did not consent to the amendments in writing, and despite this, the court proceeded with the amendments, convicting and sentencing the appellant on all charges, including the amended ones. The appeal to the court was focused on whether the court below erred in amending the charges and, if so, whether that error was involved in the final orders for conviction and sentence.

The central legal issue for the court to decide was whether the court below erred in amending the charges without the appellant's written consent and, if so, whether this error was involved in the final orders for conviction and sentence. The court had to consider the statutory framework provided by the Criminal Procedure Act 2009, specifically sections 7, 8, and 272, which pertain to the amendment of charges in criminal proceedings. The appellant argued that the court below did not have the authority to amend the charges without written consent, and that this error tainted the subsequent orders for conviction and sentence.

The court found that the court below did indeed err in amending the charges without the appellant's written consent. This error, the court held, was significant enough to affect the final orders for conviction and sentence. The court below had no authority to amend the charges without the appellant's written consent, and this procedural error meant that the convictions and sentences on the amended charges were not valid. Consequently, the appeal was allowed, and the matter was remitted to the Magistrates’ Court for a new hearing on the original charges. The court did not need to address the other charges as the convictions on the amended charges were quashed.

Orders