Bell v Dawson - [2000] VSC 169

SUPREME COURT OF VICTORIA

COMMON LAW DIVISION

Not Restricted

No. 7571 of 1999

BRETT BELL	Appellant
v
STUART R. DAWSON	Respondent

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JUDGE:	Balmford, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	19 April 2000
DATE OF JUDGMENT:	9 May 2000
CASE MAY BE CITED AS:	Bell v Dawson
MEDIA NEUTRAL CITATION:	[2000] VSC 169

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CRIMINAL LAW – Appeal from Magistrates’ Court – Charge laid under s.49(1)(e) of the Road Safety Act 1986 – Whether the charge sufficiently described an offence under the Road Safety Act 1986 – Amendment of charge where there is a defect or error.

Magistrates’ Court Act 1986; ss 26, 27(1), 27(2), 50
Magistrates (Summary Proceedings) Act 1975; s 167
Road Safety Act 1986; ss 49(1)(e), 55(1), 55(4)

DPP v Foster [1999] VSCA 73
Ex parte Lovell; re Buckley (1938) SR (NSW) 153
Johnson v Miller (1937) 59 CLR 467
Pointon v Cox (1927) 136 LT 506
R v Clarke [1969] 2 All ER 1008
Walker v DPP (1993) MVR 194
Woolworths (Victoria) Limited v Fred Marsh (unreported; delivered 12 June 1986)

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G Hardy with Mr S Hardy	Einsiedels
For the Respondent	Mr GJC Silbert	Peter Wood, Solicitor for Public Prosecutions

HER HONOUR:

This proceeding is an appeal pursuant to section 92 of the Magistrates’ Court Act 1989 (“the Magistrates’ Court Act”), which provides that a party to a criminal proceeding in the Magistrates’ Court (other than a committal proceeding) may appeal to this Court, on a question of law, from a final order of the Magistrates’ Court in that proceeding.

The final order under appeal was made on 19 October 1999 by the Magistrates’ Court at Sunshine constituted by Mr JS Mornane, Magistrate, convicting the appellant of a charge laid under section 49(1)(e) of the Road Safety Act 1986 (“the Road Safety Act”) and ordering that he pay a fine of $1000 together with $31.50 statutory costs, that his driver’s licence be cancelled and that he be disqualified from driving in the State of Victoria for a period of four years. The relevant facts are set out in the two affidavits of the appellant and the exhibits thereto.

By Order made on 18 November 1999 Master Wheeler found that the three questions of law raised by the appeal were:

(a)Whether the charge, (prior to its amendment) sufficiently described an offence under the Road Safety Act 1986?
(b)Whether the amendment of the charge had the effect of the “laying of a fresh information”?
(c)Whether the Learned Magistrate erred in granting leave to the Respondent to amend the charge where more than 12 months had passed since the date of the alleged offence?

It is not in issue that the word “information” in question (b) should read “charge”, since the enactment of section 26(1) of the Magistrates’ Court Act, as to which see paragraph 7 below.

The charge pursuant to which the appellant was convicted is in the following terms:

The defendant at Altona North on 28/08/98…

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 Bell v Dawson

Details

AGLC: Bell v Dawson [2000] VSC 169
Case: [2000] VSC 169
Decision Date: 9 May 2000

CaseChat Overview and Summary

The appellant, Bell, was charged under section 49(1)(e) of the Road Safety Act 1986 in the Magistrates’ Court for driving a vehicle without due care and attention. The matter was subsequently appealed to a higher court on the basis of an alleged defect in the original charge. The central issue was whether the charge was sufficiently precise to describe an offence under the Act, and whether it was appropriate to amend the charge to correct the defect. This case provides an opportunity to examine the application of statutory interpretation and the principles governing the amendment of charges in summary proceedings.

The court was tasked with determining whether the original charge complied with the statutory requirements and if there was sufficient ground to permit an amendment. This required an analysis of the relevant sections of the Road Safety Act 1986, the Magistrates’ Court Act 1986, and the Magistrates (Summary Proceedings) Act 1975. The court also considered precedent cases such as DPP v Foster, Ex parte Lovell; re Buckley, Johnson v Miller, Pointon v Cox, R v Clarke, and Walker v DPP, as well as an unreported decision in Woolworths (Victoria) Limited v Fred Marsh.

The court held that the original charge was defective as it did not sufficiently detail the specific circumstances of the alleged offence. However, it found that under the relevant statutes, there were provisions that allowed for the amendment of a charge to correct such defects. The court cited the authority in DPP v Foster, which supported the notion that where a charge is technically deficient but the error can be rectified without prejudice to the defendant, the court may allow an amendment. Additionally, the court referenced the decision in Woolworths (Victoria) Limited v Fred Marsh, which underscored the principle that charges should be amended to ensure clarity and fairness to the defendant.

Accordingly, the appeal was dismissed, and the charge was allowed to be amended to accurately reflect the offence. The court's decision emphasised the importance of precise statutory language in criminal charges, while also recognising the flexibility provided for in the legislative framework to correct procedural errors.

Orders