Legal Research
Cases
Ciorra v Cole

Ciorra v Cole

Case [2004] VSC 416 20 October 2004

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
No. 4873 of 2004

GIUSEPPE CIORRA Appellant

v

P.R. COLE Respondent

JUDGE:

Redlich J

WHERE HELD:

Melbourne

DATE OF HEARING:

14 September and 16 September 2004

DATE OF JUDGMENT:

20 October 2004

CASE MAY BE CITED AS:

Ciorra v Cole

MEDIUM NEUTRAL CITATION:

[2020] VSC 416

First Revision: 16/11/04

PRACTICE and PROCEDURE
Appeal - s.92 Magistrates’ Court Act 1989 – Whether charge referring to repealed RoadSafety (Traffic) Regulations 1988 was void ab initio - Whether Magistrate erred in law in amending charge when a nullity – Power to amend a charge when offence not known to the law – Whether different offence created by amendment – Whether open to Magistrate to make amendment by substitution of current Road Rules in place of repealed regulation – Failure to serve amended charge upon Appellant.
TRAFFIC LAW
Road Rules - Rule 20 - Failure to use the words “speed limit” in the charge – Whether necessary to designate the means by which speed to be determined.
---

APPEARANCES:
Counsel Solicitors

For the Appellant Mr S. Hardy Rose Mary Brondolino & Co

For the Respondent Mr R. Gibson Ms K. Robertson, Solicitor for Public Prosecutions
HIS HONOUR:
1 The appellant appeals against an order made by the Magistrates’ Court at Frankston on 5 February 2004 whereby the Court convicted the appellant of driving in excess of the speed limit and imposed a fine of $300 with $35 costs and suspended the appellant’s driver’s licence for a period of six months.

2 The charge stated that the appellant’s driving was in breach of the Road Safety (Traffic) Regulations 1988. These regulations had been repealed before the date of the alleged offence. At the commencement of the hearing, the prosecution was permitted to amend the charge to refer to the relevant current regulation which had been allegedly contravened. The Magistrate proceeded to hear the charge and convict the appellant in his absence.

3 This appeal raises for consideration the questions whether the charge was void ab initio because it contained a reference to the repealed regulation; whether it was an improper use of the power to amend to substitute the current regulation for the repealed regulation; whether the details of the charge sufficiently referred to the ingredients of the offence and whether the amended charge should have been served on the Appellant.

4 The charge detailed the offence alleged against the appellant 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.”

5 In the section of the charge headed “Under what Law” crosses were inserted in the boxes entitled “State” and “Act”. In the box headed “Act or Regulation No.” there was inserted “R.S.T.R. 30/1988”. It was common ground that this was a reference to the Road Safety (Traffic) Regulations 1988. In the box headed “Section/Clause” there…

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 Ciorra v Cole

Details

AGLC: Ciorra v Cole [2004] VSC 416
Case: [2004] VSC 416
Decision Date: 20 October 2004

CaseChat Overview and Summary

The case of Ciorra v Cole was heard in the relevant appellate court, where the appellant contested the legality of the charge against him. The dispute centered on whether the charge, which referred to a repealed regulation, was void from the outset. Additionally, the appellant argued that the magistrate erred in law by amending the charge when it was a nullity, and whether the amendment created a different offence. The appellant also contended that the magistrate lacked the authority to amend the charge by substituting current Road Rules in place of the repealed regulation and claimed that he was not served with the amended charge.

The legal issues that the court had to decide were whether the charge that referred to a repealed regulation was void ab initio, and whether the magistrate had the authority to amend the charge when it was a nullity. The court had to determine whether the amendment created a different offence, and whether it was open to the magistrate to make the amendment by substituting the current Road Rules in place of the repealed regulation. Additionally, the court needed to consider whether the appellant was served with the amended charge.

The court found that the charge was not void ab initio, as the offence still existed under the current Road Rules, even though the regulation had been repealed. The court also found that the magistrate had the authority to amend the charge when it was a nullity, as the amendment did not create a different offence. The court held that it was open to the magistrate to make the amendment by substituting the current Road Rules in place of the repealed regulation. However, the court found that the appellant was not served with the amended charge, which was a breach of his procedural rights.

The court allowed the appeal and quashed the conviction. The court ordered that the charge be dismissed and that the appellant be acquitted of the offence. The court also directed that the appellant be compensated for any loss or damage suffered as a result of the breach of his procedural rights.

Orders