DIRECTOR OF PUBLIC PROSECUTIONS REFERENCE NO. 2 OF 2001
No. 124 of 2001
ERIC COLLICOAT
No. 5623 of 2000
v.
DIRECTOR OF PUBLIC PROSECUTIONS
BRETT BELL
No. 7571 of 1999
v.
STUART DAWSON
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JUDGES:
WINNEKE, P., CHARLES and CHERNOV, JJ.A.
WHERE HELD:
MELBOURNE
DATE OF HEARING:
18 July 2001
DATE OF JUDGMENT:
8 August 2001
MEDIUM NEUTRAL CITATION:
[2001] VSCA 114
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Motor vehicles – Criminal law – Driving offences – Preliminary breath test – Sample of breath to be furnished under statute – Essential elements of offences – Whether charges sufficiently described – Whether amendment permitted more than 12 months after offence – Road Safety Act 1986 (No. 127) ss.49(1)(e), 49(1)(f), 53(1), 55(1); Magistrates’ Court Act 1989 (No. 51) ss.27, 50, 92.
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APPEARANCES:
Counsel
Solicitors
For the Crown and Dawson
Mr P.A. Coghlan, Q.C. Mr R. Elston
Ms Kay Robertson, Solicitor for Public Prosecutions
For Acquitted Person
Mr W.J. Walsh-Buckley
Secombs
For Collicoat
Mr G.A. Hardy
Prescott & Associates
For Bell
Mr S.P. Hardy
Einsiedels
WINNEKE, P.:
For the reasons given by Charles, J.A., I agree that the questions raised in the Director of Public Prosecutions Reference No.2 of 2001 should be answered in the manner proposed by his Honour, and that the two appeals should be dismissed.
CHARLES, J.A.:
The Court has before it three matters, which were argued together, each of which concerns a summons relating to an offence alleged under Part 5 of the Road Safety Act 1986. In each case the defendant claimed that the charge was defective in that it failed properly to allege the offence in question, and that the defect could not be cured by amendment. In each case like issues were therefore raised as to the form of the charge and the specificity with which the elements of the charge must be alleged, and the power of amendment contained in s.50 of the Magistrates’ Court Act 1989.
DPP Reference No. 2 of 2001
This is a Reference by the Director of Public Prosecutions pursuant to s.450A of the Crimes Act 1958 on points of law arising in an appeal to the County Court from the Magistrates’ Court, which resulted in the acquittal of the defendant, Silvano Callegher.
Callegher was convicted in the Magistrates’ Court on 19 January 2001 on a charge of having committed an offence against the provisions of s.49(1)(f) of the Road Safety Act. The charge was in the following form –
“The defendant at Port Melbourne on 20/03/1999 did within 3 hours after driving a motor vehicle furnish a sample of breath for analysis by a breath analysing instrument pursuant to s.55(1) of the Road Safety Act, 1986, and the result of the analysis recorded or shown by the breath analysing instrument indicated that more than the prescribed concentration of alcohol, being 0.05 grams per 100 millilitres of blood was present and the concentration of alcohol indicated by the analysis to be present in his blood was…
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.
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AGLC
Bell v Dawson [2001] VSCA 114
Case
[2001] VSCA 114
Decision Date
CaseChat Overview and Summary
In the matter of Bell v Dawson, the case involved a dispute arising from driving offences. The defendant, Dawson, was charged with various offences including driving a motor vehicle with a blood alcohol concentration exceeding the legal limit and refusing to provide a breath sample when directed by a police officer. The matter was brought before the Magistrates' Court.
The primary legal issues the court had to determine were whether the charges were sufficiently described in the court documents and whether an amendment to the charges was permissible more than 12 months after the offence had occurred. Specifically, the court needed to consider the requirements of the Road Safety Act 1986 and the Magistrates' Court Act 1989 concerning the specification of offences and the timeliness of amendments to charges.
The court examined the statutory provisions and concluded that the charges were sufficiently described under the Road Safety Act 1986. It found that the essential elements of the offences, including the requirement to provide a breath sample and the circumstances of the refusal, were adequately outlined. Regarding the amendment of charges, the court determined that while amendments are generally permitted to ensure justice, the specific timelines set out in the Magistrates' Court Act 1989 precluded an amendment more than 12 months after the commission of the offence. Consequently, the court dismissed the application to amend the charges.
As a result of the court's determination, the charges against Dawson remained as originally laid, and the proceedings continued without amendment.