Burke v Commissioner of Police

Burke brought an appeal against his conviction in the Magistrates Court of Victoria for an offence under section 4AA of the Summary Offences Act 1966 (Vic). The charge was that he had committed an act of indecency with a child under the age of 16 years, but the charge did not specify the date of the offence. The respondent to the appeal was the Commissioner of Police, representing the Crown in this matter. The Court of Appeal was required to determine whether the charge was sufficiently particularised as to time, in accordance with the requirement of section 32(1)(a) of the Crimes Act 1958 (Vic).

The Court held that the requirement of section 32(1)(a) was not satisfied because the date of the offence was not specified. The Court cited several authorities in support of this conclusion, including the decision of the High Court in R v Tomcevich (1963). The Court further held that the absence of a date in the charge meant that the respondent was unable to effectively prepare his defence, and that this was a breach of natural justice. The appeal was therefore allowed and the matter was remitted back to the Magistrates Court to be dealt with in accordance with law.

The Court stayed the appeal temporarily, and ordered that the matter be remitted back to the Magistrates Court. The Court did not make any orders as to costs.