Daly v Karamoshos

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 02941

Between:
LUKE DALY	Appellant
-and-
JIM KARAMOSHOS	Respondent

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATES OF HEARING:	21 November 2019 & 30 July 2020
DATE OF ORDERS:	30 July 2020
DATE OF PUBLICATION OF REASONS:	17 August 2020
CASE MAY BE CITED AS:	Daly v Karamoshos
MEDIUM NEUTRAL CITATION:	[2020] VSC 506

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APPEAL — Motor vehicles — ‘Drink-driving’ charges alleged appellant “in charge of” motor vehicle — Whether magistrate erred in allowing amendment of charges, beyond limitation period, to include words “did drive or” — Whether amendment had “the effect of charging a new offence” — Whether provisions create separate offences of “driving” and “being in charge of” motor vehicle — Whether any evidence for magistrate’s finding that amendment would not “cause injustice to [appellant]” — Appellant found guilty on basis that he “did drive” — Whether magistrate erred in allowing respondent to re-open case (after close of defence case) to prove preliminary breath test conducted on “prescribed device” — Whether, in considering application to re-open case, magistrate erred in having regard to contents of “Form 12” completed after summary case conference — Appeal allowed — Finding of guilt and sentence set aside — Finding of not guilty and dismissal of charge substituted — Road Safety Act 1986 (Vic), ss 3, 3AA, 3AB, 48(1)(b), 49(1)(a), (b) & (f), 50, 51, 53, 55 & 58; Criminal Procedure Act 2009 (Vic), ss 5, 6, 7, 8 & 272.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S P Hardy	The Law Offices of Barry Fried
For the Respondent	Mr C Carr	Office of Public Prosecutions

HIS HONOUR:

Overview

The issue upon which this appeal was decided

The issue upon which this appeal ultimately turned concerned whether there was any evidence for a magistrate’s finding with respect to one of the three conditions required by s 8(4) of the Criminal Procedure Act 2009 (Vic) (“the CPA”) to authorise an amendment of a charge for a summary ‘drink-driving’ offence beyond the expiry of the twelve-month time limit for such amendments. In my view, there was no such evidence. As a result, the amendment was not authorised. Since the evidence before the magistrate failed to establish the allegation in the unamended charge, the finding of guilt and resulting sentence had to be set aside and a finding of not guilty and dismissal substituted instead. The issue arose in this way.

In the early hours of 2 August 2014, Luke Daly lost control of his Holden utility in the wet and crashed into a gutter on Hoddle Street in Collingwood. The ute was rendered undrivable upon impact, as its right rear wheel was broken off its axle. When First Constable Jim Karamoshos and his colleague attended the scene, Mr Daly was seated in the driver’s seat. Happily, he was unhurt. After administering a preliminary breath test (“PBT”) indicating the presence of alcohol, the two police officers took Mr Daly to Fitzroy Police Station for an evidentiary breath test (“EBT”). The EBT gave a reading of 0.176 grams of alcohol in 210 litres of breath, which was well over the prescribed limit.

F/C Karamoshos charged Mr Daly with three offences against s 49(1)(b), (f) and (a) of the Road Safety Act 1986 (Vic) (“RSA”) respectively.[1] Each charge alleged that Mr Daly was (or had been) “in charge of” the vehicle at the relevant time. None alleged that he “did drive”.[2]
[1]Mr Daly was also charged with two other relevant offences. See below.
[2]There is a slight qualification to that statement in respect of Charge 2. See below.

At the contested hearing in the Magistrates’ Court, after the close of both the prosecution and defence cases, it was submitted that all charges must be dismissed because there was no evidence (i) that police used a “prescribed device” to perform the PBT; and (ii) that Mr Daly was found in charge of the utility at the relevant time.[3]
[3]A third argument raised on behalf of Mr Daly, which turned upon what was said to be an absence of evidence of the time of the accident, need not be addressed at this point. See below.

Over objection, however, the magistrate (i) allowed the prosecutor to re-open his case in order to call evidence that the PBT used was a prescribed device (which he did) and (ii) amended the charge against s 49(1)(b) (Charge 1),[4] beyond the limitation period, by inserting the words “did drive or” just before those alleging Mr Daly “was in charge of a motor vehicle”.
[4]The application was to amend all three charges in the same way, but, as will be seen, the magistrate’s reasons appear to be confined to amendment of Charge 1.

The magistrate ultimately found Mr Daly guilty on Charge 1 based upon her satisfaction that he “did drive … a motor vehicle whilst more than the prescribed concentration of alcohol was present in his breath in Hoddle Street, when his vehicle collided with the gutter”. Her Honour did not make any finding that he was “in charge of” the vehicle when police arrived. Mr Daly’s driver’s licence was cancelled and he was disqualified from driving for 17 months. (By a slip, this order was made prospective, instead of the retrospective order her Honour had intended.) The charges under s 49(1)(f) and (a) were struck out as alternatives, in accordance with the usual practice.

Mr Daly appealed against the orders concerning Charge 1 to this Court on questions of law.[5] The appeal was heard at the end of last year, but its resolution was delayed for various reasons, including the need to hear further submissions on authorities to which no reference had been made at the hearing. After receiving further written and oral submissions recently, I allowed the appeal, set aside the finding of guilt and sentence, and substituted a finding of not guilty and dismissal of the charge. I gave ex tempore reasons for those orders but, with the consent of the parties, deferred giving my detailed written reasons until now.
[5]Brought pursuant to s 272 of the Criminal Procedure Act 2009 (Vic).

As I have intimated, the basis on which I allowed the appeal was that the magistrate erred in law in granting the application to amend Charge 1. This was because there was an absence of evidence for her conclusion, pursuant to s 8(4)(c) of the CPA, that the amendment would “not cause injustice” to Mr Daly. As will be seen, it is clear that critical to her Honour’s conclusion was a finding that Mr Daly knew that, in truth, the original charge alleged he was driving, not that he was in charge of, a motor vehicle at the relevant time. Yet there was no evidence that he knew any such thing. On the contrary, and for reasons I shall develop later, any reasonable accused would have understood that the charge alleged that he was in charge of the utility when police arrived, and not that he had driven at the time of the accident. Nor could it be said that the amendment caused no injustice to Mr Daly, given that, fixed with that belief, his case was conducted on the basis that he admitted driving at the time of the accident, whereas he would have conducted his defence differently had he understood that the charges alleged that he was driving.

Several factors compelled the order that Charge 1 be dismissed instead of remitting the matter to the Magistrates’ Court for hearing on the unamended charges. The principal reason for taking that course was that, on the evidence before the magistrate, it was not open to be satisfied beyond reasonable doubt (and, in any event, I was not so satisfied) that Mr Daly was in charge of his motor vehicle at the relevant time. It was conceded, on behalf of the Director of Public Prosecutions, that, in the circumstances, it would be improper to seek to revive Charges 2 and/or 3.

Other questions raised on the appeal

Initially, the major complaint agitated on the appeal concerned whether the amendment had the effect of charging a new offence[6] — i.e. a separate offence concerned with driving the ute at the time of the accident, instead of being in charge of the vehicle when police arrived later — in respect of each of the three offences against paragraphs (b), (f) and (a) of s 49(1) of the RSA. Usually, this would be a question antecedent to the one on which the appeal was decided. In view of the further argument on the second day of hearing, however, it became clear that the Director now wished to put further submissions on the “two-offences-versus-one” question before I determined the point finally. It was likely that that course would have necessitated further written submissions and perhaps even a further oral hearing. As will be seen, this case already had had a rather long and tortuous history in the court below. Any further hearing was to be avoided, if at all possible.
[6]See s 8(3) of the Criminal Procedure Act 2009 (Vic).

It was against that background that the Director suggested that, instead of taking that particular course, if the tentative views I had expressed on the point governed by s 8(4)(c) of the CPA were to ripen into concluded findings, then it would be open to allow the appeal and make the orders I made without finally determining the question whether the offence provisions in question each create at least two offences or just the one. Counsel for Mr Daly was content to take that course.

Accordingly, while I still shall rehearse some of the arguments and make some remarks concerning the question whether the provisions in question create at least two offences, it is to be understood that those remarks are made without the benefit of the further submissions that the Director wished to put and without any response from Mr Daly. Such observations are, in any event, no more than obiter dicta.

There were two more questions of law that were also prominent among the several raised on the appeal. They concerned whether the magistrate erred in allowing the prosecutor to split his case and whether, in coming to that view, her Honour erred by relying on information gleaned from a “Form 12” completed at a summary case conference. While these questions were argued fully, any remarks I make about them are also just that — only remarks designed for guidance.

An appeal might have been avoided

In the eyes of many, this case would not be regarded as a shining example of drink-driving law at work. A failure properly to charge and prosecute the alleged offences in issue has led ultimately to the dismissal, in this Court, of the charge on which Mr Daly was found guilty, in circumstances where a charge under at least one of paragraphs (b), (f) or (a) of s 49(1) of the RSA might have been proved readily had things been done correctly in the first place.

Equally, well before the completion of the hearing below, Mr Daly had already served the seventeen-month licence disqualification period imposed based upon a finding of guilt on the amended charge which, in my opinion, he should not have faced given the drastic nature of the amendment, the prejudice it caused to his defence and the late stage at which it was sought.

In fact, while it was a little unclear, it seems that there was no order staying the original suspension of his licence to drive (which had been effected via a notice served by police on 2 August 2014) at any point before the hearing in the Magistrates’ Court, and none until after the present appeal was instituted and an application was made for a stay of the magistrate’s order by a judicial registrar of this Court on 1 February 2019. Thus, whether he needed it or not, it seems that the combined effect of the initial police suspension and the magistrate’s order was that Mr Daly was without his licence for over four years. By any measure, that is a very heavy punishment, whether or not one is more attracted to the notion that he could have been convicted if the matter had been handled properly from the outset or that he should not have been convicted precisely because it was not handled properly.

To be sure, drink-driving law is unduly complex and is riddled with traps for all players, both young and old. That said, while what was originally the major point at issue below and on this appeal (i.e. whether the provisions create at least two offences) appears to have been lacking in binding authority, as will be seen, there are obiter dicta in this Court and in the Court of Appeal that were not brought to the magistrate’s attention. Had she been aware of the remarks in those cases, her Honour may well have dismissed the charges anyway, which may have avoided the need for any appeal.

My detailed reasons for these conclusions and orders follow.

Structure of judgment

It is convenient first to summarise the history of the proceeding in the Magistrates’ Court up to the point at which the evidence commenced at the contested hearing, and then to turn to the evidence itself, followed by the submissions and applications made to the magistrate and then to her Honour’s reasons for her key rulings and her finding of guilt on the charge under s 49(1)(b) of the RSA.

Thereafter, I shall turn to this appeal, including the questions of law raised, counsel’s submissions on the first day of the appeal, their additional submissions on the second day, my reasons for allowing the appeal and making the orders I have made, and my (obiter) remarks on the other three major points agitated.

Summary of history of proceeding

Charges filed

About a month after the accident, on 3 September 2014, F/C Karamoshos filed with the Neighbourhood Justice Centre at Collingwood five charges against Mr Daly, including the three charges for offences contrary to s 49(1)(b), (f) and (a) of the RSA (Charges 1, 2 and 3 respectively). As can be seen in the text, each of those three charges alleged that Mr Daly was “in charge of” the vehicle at the relevant time.[7]

Charge 1: The accused at Collingwood on 2^nd August 2014 was in charge of a motor vehicle while more than the prescribed concentration of alcohol was present in his breath being .05 grams per 210 litres of exhaled air. (Alleged Reading 0.176)
Charge 2: The accused at Fitzroy on 2^nd August 2014 did within [three] hours after being in charge of a motor vehicle furnish a sample of breath for analysis by a breath analysing instrument pursuant to section 55 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 .05 grams per 210 litres of exhaled air was present in his breath and the concentration of alcohol after driving or being in charge of the motor vehicle. (Alleged Reading 0.176)
Charge 3: The accused at Collingwood on 2^nd August 2014 was in charge of a motor vehicle whilst under the influence of intoxicating liquor to such an extent that he was incapable of having proper control of the motor vehicle.

[7]My emphasis.

It will be noticed that, save in one respect — namely, in the latter part of Charge 2 (to which I shall return later) — none of those three charges alleged that Mr Daly was driving or even mentioned driving.

By way of contrast, Mr Daly was also charged with an offence that did allege driving — namely, careless driving[8] (Charge 4). He was also charged with using a vehicle that does not comply with standards for registration (because of insufficient rear tyre tread)[9] (Charge 5). Those two charges read as follows:[10]

Charge 4: The accused at Collingwood on 2^nd August 2014 did drive a motor vehicle on a highway namely Hoddle Street carelessly.
Charge 5: The accused at Collingwood on 2^nd August 2014 did use a vehicle on a highway, namely Hoddle Street, that did not comply with the Vehicle Standards in that the [two] rear tyres had less than 1.5mm tread depth.

[8]Contrary to s 65 of the Road Safety Act 1986 (Vic).

[9]Contrary to r 258(2) of the Road Safety (Vehicles) Regulations 2009 (Vic).

[10]My emphasis.

Failure to appear and relisting of matter

The charge-sheet and summons issued on 3 September 2014 required that Mr Daly appear at the Magistrates’ Court at Melbourne on 14 January 2015. For reasons that were not made apparent, however, he failed to appear on that date. In consequence, a bench warrant for his arrest was issued.

Almost two years later, the warrant was executed and the matter returned to court on 15 December 2016. On that day, a contested hearing was fixed for 29 March 2017.

When 29 March 2017 came, the prosecution was not ready to proceed. The matter was then fixed for hearing on 13 November 2017.

When 13 November 2017 came, it seems that the business of the court was such that the case could not be reached. It was then fixed for hearing on 28 March 2018.

Summary case conference

On 15 December 2016, a summary case conference was conducted.

Section 54(1) of the Criminal Procedure Act 2009 (Vic) (“the CPA”) provides that a summary case conference is a conference between the prosecution and the accused for the purpose of managing the progression of the case including:

(a) identifying and providing to the accused any information, document or thing in the possession of the prosecution that may assist the accused to understand the evidence available to the prosecution; and

(b) identifying any issues in dispute; and

(c) identifying the steps required to advance the case; and

(d) any other purpose prescribed by the rules of court.

Rule 21 of the Magistrates’ Court Criminal Procedure Rules 2009 (Vic) (“the MCCPR”) provided[11] as follows:

The parties to a summary case conference shall engage in meaningful discussion relating to pre-trial disclosure, issues in dispute and the prospects for resolution of the charges.

[11]These rules have been revoked since and superseded by the Magistrates’ Court Criminal Procedure Rules 2019 (Vic).

Section 54(7) of the CPA, however, also provided as follows:[12]
[12]My emphasis. As of 1 July 2020, the provision was amended so that the clause after “unless” became paragraph (c), the full stop after the last reference to “evidence” was removed, and the following was added: “; or (d) the proceeding is a criminal proceeding for an offence alleged to have been committed during, or in connection with, the summary case conference”. See s 12 of the Justice Legislation Miscellaneous Amendments Act 2020 (Vic).

Evidence of—

(a) anything said or done in the course of a summary case conference; or

(b) any document prepared solely for the purposes of a summary case conference—

is not admissible in any proceeding before any court or tribunal or in any inquiry in which evidence is or may be given before any court or person acting judicially, unless all parties to the summary case conference agree to the giving of the evidence.

As will be seen, this provision was relied on by Mr Hardy (who appeared for Mr Daly in the Magistrates’ Court and in this Court on the appeal) to object to the magistrate relying on the contents of a so-called “Form 12” prepared on the same day as the summary case conference when considering whether or not to allow the prosecutor’s application to split his case.

Mr Hardy practices regularly in motor traffic law. He explained that summary case conferences do not occur in court. Instead, they usually involve defence counsel attending the offices of the police prosecutors and discussing matters there with a prosecutor. Sometimes, these conferences are conducted by other means, such as by telephone or email. He also explained that, on occasions, a contested case might go off for a contest mention after a summary case conference, but, more usually, the matter will be set down for a contested hearing.

Form 12 filed

Following the summary case conference, a Form 12 was filed with the Magistrates’ Court.

Rule 22 of the MCCPR provided that “[a] request for a matter to be listed for a contested summary hearing shall be in Form 12 and filed with the registrar of the Court”.

The Form 12 filed in this matter indicates the following things of note:

(a) First, the estimated hearing time was half a day.

(b) Second, a summary case conference had been held.

(c) Third, under the heading “Issues in Dispute”, the “Yes” boxes were ticked for both sub-headings “Factual arguments” and “Questions of law”.

(d) Fourth, under the next heading “If yes to any of the above, description of issue (e.g. admissibility of all/part of VARE or ROI)”, the notations are “PG 4 & 5” and “PNG 1, 2 & 3”.

(e) Fifth, under the heading “Witnesses Required” and the sub-heading “Prosecution”, boxes were ticked “Yes” for “Informant” and “Corroborator”.

At the end of the form, under the heading “Request Matter be Listed for a Contested Hearing”, it is signed by Mr Hardy and by a police prosecutor (but not the prosecutor who appeared at the contested hearing).

Contested hearing — Day 1 (28 March 2018)

Discussion prior to commencement of evidence before magistrate

As indicated earlier, the matter was ultimately fixed for a contested hearing on 28 March 2018 at Melbourne Magistrates’ Court.

When the case was called on before the magistrate, Mr Hardy indicated that there would be pleas of guilty to Charges 4 and 5 but pleas of not guilty to Charges 1, 2 and 3. When asked by the magistrate on what basis the latter charges were being defended, Mr Hardy said that the prosecution would be put to its proof. He also indicated that there would be an issue about whether the police had done everything in their power to facilitate Mr Daly’s request for a blood test. When the magistrate asked whether that was “in issue” (which was a question that seemed directed to the prosecutor), Mr Hardy said, “That’s one issue, yes.” He also estimated that the case would go for about two to three hours and that he would be making submissions.

The prosecutor noted that, on a previous mention of the case, the defence had been made aware that the EBT operator was no longer available as he had been found guilty of perjury (but not in relation to this case). Mr Hardy indicated that he had not served any notice under s 58 of the RSA, so that that witness’s absence was not a surprise to him in any event.[13]
[13]This was a reference to the fact s 58(2) of the Road Safety Act 1986 (Vic) requires that a certificate produced by an EBT is admissible in evidence and is also conclusive proof of various things stated in it unless the accused “gives notice in writing to the informant not less than 28 days before the hearing, or any shorter period ordered by the court or agreed to by the informant, that he or she requires the person giving the certificate to be called as a witness or that he or she intends to adduce evidence in rebuttal of any such fact or matter”.

In the course of discussion about the possible tendering in evidence of a statement by an expert without the need to call that witness (which tendering did not eventuate),[14] Mr Hardy conceded that Mr Daly had been driving the vehicle.
[14]While the statement was not before this Court, I understood it to be an opinion concerning the effects of alcohol consumption on driving capacity.

Finally, in the very early part of the evidence of F/C Karamoshos, to which I shall turn presently, Mr Hardy corrected the prosecutor when he stated, in a preamble to a question of the witness, that it is not in issue that Mr Daly “was found driving”. Mr Hardy said that it was conceded that Mr Daly was the driver of the vehicle, but that it was disputed that he was “found driving”.

F/C Karamoshos

At this point, it is convenient to turn to a more detailed summary of the evidence given before the magistrate, commencing with the evidence of F/C Karamoshos. He was the only witness for the prosecution.

In the early hours of 2 August 2014, F/C Karamoshos and another officer[15] were heading south along Hoddle Street in Collingwood, towards Victoria Street, when they saw a purple Holden utility “smashed up against the gutter” on the other side of the road, facing in the opposite direction of travel (i.e. against northbound traffic).
[15]This was the officer who was unavailable to give evidence because he had been found guilty of perjury (in relation to some unrelated matter).

They found Mr Daly seated in the driver’s seat. After confirming that he was unhurt and giving his personal details, Mr Daly told police that he lost control on the wet road when he turned right from Victoria Street into Hoddle Street, and that the car spun around and then hit the gutter facing against the traffic. Police could see that the ute was no longer drivable, as its right rear wheel was broken off its axle.

F/C Karamoshos then conducted a PBT, which was usual practice after a collision. The test indicated the presence of alcohol above the legal limit.

The police then asked Mr Daly to accompany them to Fitzroy Police Station for the purpose of conducting an EBT. As indicated earlier, the EBT gave a reading of 0.176 grams. The test was completed by the other officer at 4:32 a.m., which F/C Karamoshos estimated was about an hour after police had attended the scene of the accident. After being handed the EBT certificate (which was received in evidence as an exhibit) and asked why he had been driving with more than the prescribed concentration of alcohol on his breath, Mr Daly said, “I was under the influence of alcohol and my perception was altered.”

At some point while at the police station, F/C Karamoshos served Mr Daly with a notice under s 51 of the RSA, which was a notice that his driver’s licence was suspended immediately.[16]
[16]See, for example, s 51(1B) of the Road Safety Act 1986 (Vic).

While still at the police station, Mr Daly said that he wished to have a blood test. F/C Karamoshos told him that they could arrange that, but that they would have to take him to St Vincent’s Hospital to allow a registered nurse to take the blood. Mr Daly said that that was “fine” or “good”. F/C Karamoshos told him to wait in the foyer of the police station and that he would take him to the hospital. Mr Daly said he would wait there. However, Mr Daly ended up just walking out of the front door of the station. F/C Karamoshos thought he might have stepped out for a cigarette. But, when he and the other officer went looking for Mr Daly out the front of the station, they could not find him. F/C Karamoshos also explained that he had told Mr Daly that he was not under arrest and that he could leave at any time.

In response to counsel’s suggestion in cross-examination that a person at the front desk of the police station told Mr Daly he could go, F/C Karamoshos said he did not see, or recall speaking to, anyone at the desk. Instead, he believed that Mr Daly walked straight out. He said that (at a later point) he had asked for the CCTV footage of the foyer area from that time, but was told that it could no longer be obtained.

F/C Karamoshos agreed that Mr Daly was co-operative and answered all police questions.

He also accepted that the wheel of Mr Daly’s vehicle was broken to the point that it could not be driven. He agreed that a tow truck was called to tow the vehicle away. He was shown a photograph of Mr Daly’s utility, which depicts the damage to the right rear wheel and axle. (The photo was received in evidence and is before this Court as well. It is obvious that the car could not be driven.)

F/C Karamoshos disagreed with the suggestion that Mr Daly was outside the vehicle photographing it when police arrived. He said he was positive that Mr Daly was inside the vehicle when they arrived.

At the conclusion of the evidence of F/C Karamoshos, the prosecutor announced the close of the prosecution case.

Mr Daly

Mr Daly then went straight into sworn evidence. He too was the only witness in his case.

Mr Daly worked as a remedial massage therapist and was also a full-time student.

He admitted that he was the driver of the vehicle that was involved in the accident.

When asked what he did after the accident, Mr Daly said that he got out of his ute and checked the back tyre, which had collided with the gutter.

Initially, when asked (in evidence-in-chief) what he was doing when the police arrived, he said that he was outside the vehicle, at the (right rear) tyre, on the nature strip. However, when asked (in the next question in evidence-in-chief) what he had to say about the police evidence that, “when they turned up, they found [him] inside the vehicle”, he answered, “Correct.” (Plainly, that response was a surprise to Mr Hardy, which he confirmed later in the course of submissions to the magistrate and in this Court.)

Mr Daly confirmed that he was administered a PBT at the scene of the accident and then an EBT at the police station.

After police said they would take him to the hospital to do a blood test, they asked him to wait in the foyer of the station. He waited there for five minutes. He became unsure what was happening and what the police were doing. He asked an officer behind the desk if he could leave, who said he could. So he left. He said F/C Karamoshos was not in the foyer when he left. He did not go and have a blood test.

Mr Hardy then announced that that was the close of the defence case.

Submissions after close of evidence

I turn now to the submissions that followed immediately upon the close of the defence case.

While the transcript of the commencement of the argument is missing (it appears that the recording began only at a point during the submissions), the balance is before the Court. As I understand it, it is accepted that Mr Hardy made submissions to the following effect, both orally and in writing. In particular, he submitted that all three charges must be dismissed, for three reasons.

First, it was submitted that there was no evidence that the police used a prescribed device to perform the PBT. Mr Hardy relied, in particular, on this Court’s decision in Sirajuddin v Ziino (“Sirajuddin”).[17]
[17]Sirajuddin v Ziino (2005) 14 VR 689 (Hargrave J).

Second, Mr Hardy submitted that there was no evidence that Mr Daly was found in charge of the utility at the relevant time. He referred to ss 3AA(1)(a) and (b) and 48(1)(b) of the RSA and Halley v Kershaw (“Halley”).[18]
[18]Halley v Kershaw [2013] VSC 439 (Kaye J).

Third, he submitted that, because there was no evidence that Mr Daly was in charge of the vehicle and also no evidence of the time of the accident, there was therefore no evidence that the EBT was conducted within three hours of Mr Daly’s being in charge of the vehicle.

In response to the first point, the prosecutor submitted, in effect, that there was no pre-hearing notice by the defence of any challenge to the PBT. He pointed to the Form 12, which did not speak of any such thing. Similarly, in the prosecutor’s submission, nothing was indicated by defence counsel prior to the commencement of the hearing that flagged this as an issue. In those circumstances, the prosecutor asked for further time to consider the authorities in this area.

As for the second point, the prosecutor first argued that the opening words of s 3AA(1) of the RSA — “Without limiting the circumstances in which a person is in charge of a motor vehicle” — meant that the notion of “in charge of” was broader than that which was spelt out in paragraphs (a) to (d) of that subsection. Next, he submitted that neither paragraph (a) nor paragraph (b) of s 3AA(1) excludes driving. Put another way, he submitted that “driving” and “being in charge of” are “mutually inclusive” concepts, not mutually exclusive. It followed, in his submission, that a person who was driving a vehicle — as Mr Daly had been here, immediately prior to the accident — was also necessarily “in charge of” that vehicle at the same time.

On the third point, the prosecutor submitted that it could be inferred that police attended the scene only shortly after the accident.

In reply, Mr Hardy noted that the case had been run on the basis that, when police attended the scene of the accident, Mr Daly was in charge of the vehicle at that point; and had not been run on the basis that he was in charge when he got into his ute at the commencement of his journey preceding the accident. He submitted that, in those circumstances, it would not be open to the prosecution to rely on the latter basis for a finding of guilt in this case. Neither the prosecutor nor the magistrate registered any disagreement with that submission.

Adjournment

The matter was adjourned to 28 May 2018 to enable the magistrate to consider the submissions of the parties and the authorities to which they had referred.

Adjournment — Change of venue (28 May 2018)

On 28 May 2018, however, the matter was adjourned again, this time as a result of the unavailability of the magistrate. Also, the hearing was moved to be heard at Broadmeadows Magistrates’ Court, where the magistrate was then sitting. The new date for the further hearing was 21 September 2018.

Contested hearing — Day 2 (21 September 2018)

Application by prosecutor to re-open case

On 21 September 2018, the prosecutor applied to re-open his case to adduce further evidence in respect of the PBT. While he conceded that the decision of this Court in Sirajuddin provides that proof that the PBT was conducted with a prescribed device was necessary,[19] he nevertheless submitted that such evidence would be of a formal or technical nature. He submitted that the administration of justice would be brought into disrepute if he were not allowed to re-open his case. Further, he relied on the fact that there had been no notice of the need to prove that the PBT was conducted on a prescribed device in the Form 12 filed ahead of the contested hearing, which caused him to overlook proof of that matter. He submitted that the prosecution had been placed at a distinct disadvantage because of the failure by the defence to raise the point in the Form 12.
[19]The prosecutor did not specify to which of the charges he accepted that such proof was necessary, although it is plain that, in Sirajuddin v Ziino (2005) 14 VR 689, Hargrave J was dealing with a charge for an offence against s 49(1)(f) of the Road Safety Act 1986 (Vic).

Mr Hardy submitted that the circumstances must be exceptional and the issue unforeseen before an application to re-open could succeed. He submitted that he had done nothing to cause the prosecutor to believe that he was relieved of the need to prove that the PBT was conducted on a prescribed device. On the contrary, both in the Form 12 and in his announcement in open court at the outset of the case, he had made it clear that he was putting the prosecution to its proof, from which the prosecutor should have assumed that all elements were in issue. One of those elements is proof that the PBT was conducted on a prescribed device, which is a fundamental point of proof in every case that relies on a PBT. He submitted that Sirajuddin makes clear that proof of that fact is essential.

Further, he submitted that proof of that matter is not a mere formality that was overlooked; nor is it necessarily incapable of an answer by the defence. He also pointed out that defence counsel will not know whether there is any deficiency in the evidence unless and until the prosecution witness seeks to address the point. In addition, he submitted that there is no obligation on the accused to assist the prosecutor by reminding him or her of the need to prove such a fundamental matter.

Both parties also again raised the issue concerning whether Mr Daly was in charge of the vehicle at the relevant time, but the magistrate resolved to defer that issue for the time being.

Ruling on application to re-open prosecution case

The magistrate then granted the application to re-open the prosecution case. Her Honour’s ex tempore reasons for doing so were as follows:[20]
[20]For convenience, I have broken the magistrate’s reasons down into paragraphs and given each paragraph a consecutive number.

[1] In this case …, the prosecution has submitted today … that they ought be permitted to re-open the case and in due course make further submissions on driving and whether or not the accused was indeed in charge at the relevant time. I’m not going to decide the second issue at the moment however in respect of the application to re-open the case I am going to give a brief outline at this point. But I will in due course provide a written ruling.
[2] To commence with, the rule is that the prosecution case is not to be re-opened other than in exceptional circumstances. By re-opening is meant further calling of evidence by the prosecution after it has closed its case. The prosecutor … would, in the event of a successful application, call upon the informant to give evidence of the preliminary breath test with which the prosecution asserts the accused … has complied with.
[3] The re-opening would allow for evidence of, in my view, of a technical nature. The defence … says it is not a technical matter and compliance with section 53 of the [RSA] is a fundamental form of proof that the prosecution ought to have turned their mind to.
[4] However, it is my view that the Magistrates’ Court relies upon the Form 12 to be appropriately and fully completed. I am grateful to Mr Hardy for providing a copy of the Form 12 which is … a formal request for a contested summary hearing and … one aspect of that form provides that there is meant to be a description of any issue that is, factual arguments and questions of law. Whereas the form that I have … has no details provided, let alone description of any issue in dispute other than to mention that there would be a “PG to 4 and 5” and “PNG to charges 1, 2 and 3”. The whole purpose of Form 12, in my view, is that the court and prosecution is made aware of all the matters that are in issue for the purposes of the contested summary hearing. Otherwise that document becomes entirely farcical. Therefore in my view … the Form 12 has not been completed in accordance with rule 22 of the Magistrates Court (Criminal Procedure) Rules 2009. It’s incomplete and the suggestion that the prosecution ought to have just assumed that this was in issue is in my view contrary to the purpose of the Form 12. The purpose is to refine the issues and come up with an accurate estimate of the hearing time which is noted here as being half a day. Now it is my view that even that of itself indicates that the form has not been properly completed because on any view of it this would have taken more than half a day. In the event that all aspects of proof concerning proper use of a PBT would have taken of itself some greater period of time … [i]f you then add to it the accused himself giving evidence and submissions … [i]t is my recollection … that we had started the case late morning and it went right through to the afternoon when submissions had been completed. So, it is my view that the [Form] 12 is silent as to any description as to what the issues were. It is clear that there is a complete divergence between the police case and the accused’s case.
[5] It is my view that this aspect of it is a technical aspect.
[6] It is my view also that it could not be foreseen by virtue of the way in which the form was filled in. Because it is the High Court’s view that had it been foreseeable, … a re-opening ought not be allowed. I’m referring to the case of … Chin[21] where their Honours suggested, and make reference to Killick[22]…, that the prosecution ought not to have been permitted to call evidence after the close of the defence case in order to rebut an alibi raised by the accused which ought to have been foreseen by the prosecution because it had been raised in earlier proceedings. The question of whether or not a PBT was lawfully applied as per the [RSA] was never foreseen or foreseeable because in my view it had neither been mentioned in the Form 12 [nor] at any other stage.

[7] So it was the situation that it was raised at length in final submissions. So in my view this is exceptional given the dearth of description in [the Form 12]. There is a complete dearth of descriptions as to what factual issues were in dispute and what legal issues were in dispute.
[8] The accused is not prejudiced by this.
[9] It is my decision to allow the prosecution to re-open its case and call evidence in respect of the device that was used when testing Mr Daly at that preliminary stage. So, that is my ruling.
[10] As I say, I will write that out and provide it to the parties in a more fulsome fashion, but I don’t want to waste any more time this afternoon.

[21]The Queen v Chin (1985) 157 CLR 671.

[22]Killick v The Queen (1981) 147 CLR 565.

F/C Karamoshos’s further evidence

Upon being recalled immediately thereafter, F/C Karamoshos gave evidence that he used a “Lion Alcometer 400 SD” touch device for the PBT conducted on Mr Daly. He went on to describe the device, its operation, how he operated it on this occasion, and that it is prescribed under regulation 7 of the Road Safety (General) Regulations.

In cross-examination, he said that, while he could not recall whether he attended the vehicle initially with the device in his hand or whether he first attended the vehicle empty-handed and then went back to the police van to get it, nevertheless, Mr Daly was seated in his vehicle when he conducted the PBT.

In re-examination, F/C Karamoshos was allowed to read from his notes, where he said, among other things, that the PBT “was conducted by means of a Lion Alcolmeter SD-400 Touch, the prescribed device for the purposes of … [s 53 of the RSA]”. He went on to say that his notes recorded that the PBT “indicated the presence of alcohol in [Mr Daly’s] breath” and that, as a result of the test, he formed the opinion that Mr Daly’s breath contained alcohol.

Adjournment to a further date

The magistrate then adjourned the matter for further submissions on 26 September 2018. The recording and transcript of the contested hearing thus far was to be obtained in the interim.

Contested hearing — Day 3 (26 September 2018)

Application to amend charges

At the outset of the further hearing on 26 September 2018, the prosecutor applied to amend the charges pursuant to s 8 of the CPA.

The amendment proposed was to delete the words “in charge of” and substitute the words “did drive”. In the course of submissions, however, that application appeared to change, at the suggestion of the magistrate, to the addition of the words “did drive or”.

The prosecutor conceded that the application was outside the twelve-month limitation period for summary offences, but submitted that the proposed amendments were permissible, pursuant to s 8(4) of the CPA. In his submission, for the following reasons, all of the three criteria in paragraphs (a), (b) and (c) of that provision were met.

First, the charge-sheet before the amendment sufficiently disclosed the nature of the offence. It was clear that a valid offence under each of paragraphs (b), (f) and (a) of s 49(1) of the RSA had been charged.

Second, the amendment would not amount to the commencement of a proceeding for a new offence. This is because, in each case, it was not a new offence but, rather, an offence under the same provision. In his submission, “driving” and “being in charge of” a vehicle, under each of paragraphs (b), (f) and (a), are mutually inclusive concepts. Indeed, he went further and submitted, albeit without elaboration, that there was not even any need to amend the charge to cover driving.

Third, the amendment would not cause injustice to Mr Daly. He had already admitted driving the vehicle when speaking to police at the scene and by his plea of guilty to careless driving. Mr Daly, he submitted, would have understood the prosecution case to be one based on driving.

Mr Hardy was given no prior notice of the application to amend the charges. He made oral submissions but sought — and was granted — leave to file further written submissions on the point.

In his oral submissions, Mr Hardy said that the starting point is to ask whether, pursuant to s 8(3) of the CPA, the proposed amendment would have the effect of charging a new offence. If so, then, because it was conceded that the amendment would be well beyond the expiry of the period within which a proceeding for the offence may be commenced, it would become unnecessary to consider s 8(4).

In his submission, it was clear that the amendment would have the effect of charging a new offence. This was because, for at least two reasons, each of paragraphs (b), (f) and (a) of s 49(1) of the RSA created at least two offences — one based on driving a motor vehicle and the other based on being in charge of a motor vehicle.

First, s 48(1)(b) of the RSA, read with s 3AA(1), made it plain that, for the purposes of offences against Part 5 of the RSA (which included the offence provisions in s 49(1)), being in charge of a vehicle is confined, in a case like the present, potentially to those situations spelled out in paragraphs (a) and (b) of s 3AA(1). Those situations arise when the accused (a) is “a person who is attempting to start or drive the motor vehicle” or (b) is “a person with respect to whom there are reasonable grounds for the belief that he or she intends to start or drive the motor vehicle”.

Secondly, in Mr Hardy’s submission, neither of those concepts comes within the concept of “driving”. A person who is driving a car is not in charge of that car (in the senses described in paragraph (a) or (b)). And a person who is in charge of a car (within the meaning of paragraph (a) or (b)) is not driving that car. While a person who is attempting to start or drive a car is in charge of it, the moment he drives the car he will no longer be in charge of it (in either of the senses described in paragraphs (a) and (b)). Thus, in his submission, driving and being in charge of are mutually exclusive concepts.

Accordingly, to amend the three charges to include “did drive or” would have the effect of charging three new offences and therefore would be prohibited by s 8(3) of the CPA.

Mr Hardy also argued that, for the following reasons, s 8(4) could not avail the prosecution either. First, the charge-sheet before the amendment did not sufficiently disclose the nature of the offence. Each disclosed an offence based on being in charge of a vehicle, not one based on driving.

Second, because, in each case, driving and being in charge of are separate offences, the amendment would amount to the commencement of a proceeding for a new offence — namely, one based on driving.

Third, the amendment would cause injustice to Mr Daly. He had conducted his case on all three of the charges against s 49(1) on the basis that it was alleged that he was in charge of the ute, not that he was driving it. He went into evidence and made admissions to driving in the belief that those admissions were irrelevant to Charges 1, 2 and 3 because they did not charge driving but, rather, charged only being in charge of the vehicle. At least implicit in his submission was that his client would have conducted his case differently had he been charged with driving. For example, he may have been advised not to make any admission of driving and not to go into evidence and expose himself to cross-examination about this issue.[23]
[23]This point was made expressly in Mr Hardy’s written submissions opposing the application to amend the charges.

Mr Hardy conceded that, had the police drafted the charges correctly and had the necessary evidence been given, they may well have been able to prove one or more driving offences under s 49(1) against Mr Daly. But, instead, they relied on an allegation of being in charge of a motor vehicle, and yet now, well out of time, were seeking to amend the charges to driving because they had failed to prove that Mr Daly was in charge of the vehicle at the relevant time.

Neither party was able to find any authority specifically on whether any of the provisions created separate offences based on driving and being in charge of a vehicle.

In reply, while he made it clear that he did not seek to recast the prosecution case to reflect the following point, the prosecutor nevertheless seemed to suggest that, because a person who has driven a vehicle must have been in charge of the same vehicle at some stage prior to the driving, an allegation of driving can be said to be no different from an allegation of being in charge.

I shall not summarise Mr Hardy’s written submissions to the magistrate in these reasons, as they largely reflect his oral submissions.[24] The prosecutor was also given leave to file written submissions, but those submissions are not before this Court.
[24]As has been seen, part of those submissions were incorporated in the foregoing summary of Mr Hardy’s oral submissions in any event.

Adjournment to a further date

The matter was then adjourned to 16 October 2018.[25]
[25]Instead of making an order for costs against the police, the magistrate granted Mr Daly an indemnity certificate pursuant to the Appeal Costs Act 1998 (Vic). While the failure to make a costs order is one of Mr Daly’s complaints on this appeal, it is a complaint that was unnecessary to determine given the other orders I made.

Contested hearing — Day 4 (16 October 2018)

On 16 October 2018, the matter was adjourned yet again, this time because of the unavailability of the prosecutor. A further hearing was fixed for 22 November 2018.

Contested hearing — Day 5 (22 November 2018)

Further reasons on ruling allowing application to re-open prosecution case

Upon the return of the matter on 22 November 2018, the magistrate did not receive any further oral submissions. Instead, she proceeded directly to summarise the history of the proceedings and the evidence, and then turned to her further reasons for allowing the application to re-open the prosecution case. In particular, her Honour said the following (among other things):[26]

[1] The prosecution argued that amongst other things it is three matters that must be taken into account when courts decide whether or not to allow a prosecution to re-open its case. [The prosecutor said] that there were grounds in this case to allow for a re-opening. And that … in determining the matter … the judge should consider any earlier indications from defence about the issues in dispute. If the defence raises additional formal disputes after the close of the prosecution case, the prosecution should usually be permitted to repair such defects. … [The prosecutor] also said that the prosecution should be permitted to re-open its case to prove substantive, rather than technical elements, if the evidence in question is of a formal nature. He also said that courts would usually allow the prosecution to re-open if, … in such matters, … to refuse would bring the administration of justice into disrepute [where] an accused was acquitted because the prosecution overlooked an indisputable formal or technical matter. He further submitted that … the validity of the breath testing device is a formal and technical matter.
[2] Furthermore, based on the Form 12 which had been presented to the Court, this matter — which I should say at this point was virtually devoid of any detail … — … merely says PG 4 and 5 PNG 1, 2 and 3. And, where it says if yes to any of the above, description of issue … [t]here is no such description at all, provided on the Form 12.
[3] Now, bearing all of that in mind, and in addition to that it was the submission of defence … that this was a crucial issue and that it is not a matter that should be regarded as allowing for a re-opening. And he referred me to a number of cases as well. Indeed I attach a copy of the Form 12, which fails to make any specific mention [of] matters in dispute. I also say that further, and upon asking at the outset, that there was a bland reference to putting the prosecution to its proof. And, in addition to that, Mr Hardy said “circumstances of a blood test and request”, but said nothing further, in any detail, in regard to what was going to be the subject of contest. It was, in my view, implicit, in both these responses, that is, the Form 12 and the responses given by defence, that the device used to conduct the [PBT] was never in dispute. Indeed when the prosecution stated at the outset, that the other officer present was unable to attend, no objection was taken at all.
[4] Accordingly, I find that because of the failure or oversight to mention this, and the technical nature of the evidence sought to be led regarding the exact type of device used for the PBT, I allowed the application to re-open.
[5] Accordingly, evidence was led to prove the testing device was a prescribed one as per the Road Safety [(General)] Regulations of 2009 … . And there was very limited cross-examination. And I gave the accused the opportunity to give further evidence, and after seeking instructions, Mr Daly decided not to give any further evidence. So, that application of the prosecution succeeded. That is to re-open, because Mr Hardy had argued that … the prescribed device — there had never been evidence … as to the device being prescribed and in accordance with the Act.

[26]Again, for convenience, I have broken the magistrate’s reasons down into paragraphs and given each paragraph a consecutive number.

Ruling on application to amend charges

The magistrate then turned to her reasons for allowing the application to amend the charges. In particular, her Honour said the following:[27]

[1] The prosecution also made an application to amend Charge 1, to add the words “did drive or”. … So that … would therefore read, if the amendment were to be made, “the accused on the 2^nd of August 2014 did drive or was in charge of a motor vehicle whilst having more than the prescribed concentration of alcohol”.
[2] Mr Hardy strongly objected to this amendment, stating that it would be wrong and unjust to allow the amendment when it was outside the 12 months period. And that it would be changing the nature of the allegation. I was referred to cases including: Ayles v The Queen …;[28] DPP v Kypri … .[29]
[3] Having heard the arguments and read the cases and ss 8 and 165 of the [CPA], I am nonetheless satisfied that, in all of the circumstances of this case, … the amendment requested is indeed outside of the limitation period.

[27]Yet again, I have broken the magistrate’s reasons down into paragraphs and given each paragraph a consecutive number.

[28]Ayles v The Queen (2008) 232 CLR 410.

[29]DPP v Kypri (2011) 33 VR 157.

Her Honour then addressed each factor in s 8(4)(a), (b) and (c) of the CPA, and in particular said this:

[4] … “A court may only amend a charge outside … the limitation period if the charge-sheet before the amendment sufficiently disclosed the nature of the offence” [s 8(4)(a)]. Well, clearly it did here.
[5] “The amendment doesn’t amount to the commencement of proceedings for an entirely new offence” [s 8(4)(b)]. Which it doesn’t.
[6] And, “the amendment will not cause injustice to the accused” [s 8(4)(c)]. … It is my view, after a careful consideration, that an amendment does not create an injustice, and does not take the accused by surprise. He knew precisely what he was being charged with. As to whether or not it causes an injustice, it is not relevant that the amendment will make it more likely that the accused will be convicted, or to minimise a risk of acquittal on a charge.
[7] It is my view it does not create a new offence, and it does not create an injustice when it was very clear what he had been, and was being, charged with.

I pause to observe that, while the prosecution application was to amend Charges 1, 2 and 3, and each in the same way, the magistrate’s reasons appear to be confined to amending Charge 1 (which charged an offence under s 49(1)(b)). Since the original charge-sheets (as amended) were not before this Court on the appeal, I was unable to determine conclusively whether her Honour amended only Charge 1 or whether she amended all three charges.

As I understood things, because of this uncertainty, counsel in this Court at times referred to the amendment of Charge 1 and at others as if all three charges had been amended in the same way. In turn, my references to counsel’s submissions in this Court at times may reflect that approach.

While it makes no difference to the outcome of the appeal, I shall extend the (obiter) discussion of whether s 49(1)(b) creates at least two offences or just the one to whether s 49(1)(f) and (a) do so as well.

The magistrate’s findings on Charge 1 (as amended)

Finally, the magistrate announced her findings, including her satisfaction that Charge 1 (as amended) was established:[30]

[1] … I find the evidence of the … informant and the accused, in respect of his exact position … when police arrived, to be uncomfortably at odds with each other. … Mr Hardy put to [Mr Daly], “… you were the driver of the vehicle involved in an accident?” Answer: “Correct”. Mr Daly was then asked, “Police say you were behind the wheel, when they arrived?” The answer was: “Correct”. Prior to that … when asked, he said that he was “checking his tyres”. So it was the accused who conceded he was in the car behind the steering wheel.
[2] He also conceded … that “you were well aware that you were meant to be waiting for the other police for the blood test”. Answer: “Correct”. The later question does not really bear upon the real — with any real relevance, now that the prosecution have decided not to pursue that issue. But, if one accepted this aspect of his evidence, it reveals a lack of credibility. But also his decision to leave the station, despite previously being insistent upon having a blood test.
[3] For these reasons, I am left, therefore, with misgivings about the credibility of the evidence given by the accused and am satisfied beyond reasonable doubt that Mr Daly “did drive”, as per Charge 1, “a motor vehicle whilst more than the prescribed concentration of alcohol was present in his breath in Hoddle Street, when his vehicle collided with the gutter”. I’m also satisfied he was behind the wheel, and that police arrived very shortly thereafter and properly opined that he was the driver of the vehicle which was stationary because of a wheel coming off the axle. I am further satisfied that the [PBT] was properly performed … with the use … of a prescribed device as per the [RSA]. There was no objection or issue raised in respect of [the EBT certificate], which certifies that at Fitzroy Police Station, where he was taken shortly after the PBT, he was found to have a reading of 0.176. Thus I find Charge 1 proven.
[4] Charges 2 and 3 are alternatives and ought to be struck out.

[30]My emphasis. Again, I have added paragraph numbers.

Plea and sentence

The magistrate then heard a plea in mitigation on Charge 1 (and also on Charges 4 and 5, to which, Mr Hardy confirmed, Mr Daly would plead guilty).

Her Honour was told that the s 51 notice suspending Mr Daly’s licence had been served upon him on 2 August 2014, so more than four years earlier. Thus, he had already served the minimum period of 17 months of licence disqualification that usually would be imposed for such an offence.

The magistrate indicated that, in those circumstances, she did not propose to impose any further punishment.

Slip in order for licence disqualification

Despite the forgoing, the order entered into the record of the Magistrates’ Court against Mr Daly was that his licence be cancelled and that he be disqualified from driving in Victoria for a period of 17 months “effective from [22 November 2018]”.[31]
[31]Curiously, the same order initially was recorded in respect of the offence in Charge 5, but the order recorded in respect of Charge 4 (careless driving) provided that the order on Mr Daly’s licence was “effective from [2 August 2014]”. It seems clear enough that the latter is the order that the magistrate intended to make on Charges 1 and 5 as well. At the hearing of the appeal, Mr Hardy explained that, upon a subsequent application to the Magistrates’ Court, the order in respect of Charge 5 was amended to read simply “discharged”. The order on Charge 5 was left intact. It seems that the order concerning Charge 1 was not the subject of the same application because it was under challenge on this appeal. Mr Carr, who appeared for the Director in this Court (but not below), explained that the order under Charge 1 disqualifying Mr Daly from driving for 17 months from 22 November 2018 was eventually the subject of a stay, by a judicial registrar of this Court, made on 1 February 2019.

Mr Hardy submitted that, so as to reflect her evident intent when making the orders, the magistrate ought to have had regard to s 50(2) of the RSA, which provides as follows:

Any period of suspension imposed on a person under section 51 must be deducted from the period of disqualification imposed on that person under this section.

In particular, in his submission, the magistrate should have made an order, pursuant to s 51(14) of the RSA, which provides as follows:

If on the subsequent hearing of the charge the accused’s driver licence or learner permit is cancelled and the accused is disqualified from obtaining one for a specified time, the court must take into account in fixing the period of disqualification the period of suspension under this section.

Mr Carr, who appeared for the Director in this Court (but did not appear for the informant below), conceded that the written orders recorded by the magistrate contain a slip. He accepted that, when announcing her decision, the magistrate made it clear that the licence suspension period had already been served and was to be treated as such, but that the written orders do not give effect to that decision.

Mr Carr submitted that it would have been preferable for the appellant to have sought correction of the slip in the Magistrates’ Court, either after checking the orders made on the day (before they entered into record) or at some later stage (pursuant to s 412 of the CPA). He also conceded, however, that, as this Court was now seized of the matter, it would be open on this appeal to make orders to give effect to the evident intention of the magistrate.

Both parties accepted that no order of the foregoing type would be necessary if, on another ground or grounds, the appeal were allowed and the finding of guilt and sentence were set aside.

Questions of law

I turn now to the questions of law raised on this appeal by Mr Daly. Those questions are put in the following way in the amended notice of appeal:

Question 1: Did the magistrate err in allowing the respondent to re-open his case and lead further evidence after the close of the appellant’s defence case?
Question 2: When considering the respondent’s application to re-open the prosecution case, did the magistrate err in having regard to the Form 12 completed at summary case conference notwithstanding s 54(7) of the [CPA]?
Question 3: Did the magistrate err in ordering that the charge be amended after the close of the appellant’s defence case and after 12 months had passed since the date of the alleged offence?
Question 4: Did the magistrate err in finding that a preliminary breath test had been conducted on the appellant in accordance with the [RSA]?
Question 5: Did the magistrate err in finding the appellant guilty in respect of Charges 1, 2 or 3?
Question 6: Did the magistrate err when refusing to make an order for costs in favour of the appellant in respect of the adjournment ordered on 26 September 2018?
Question 7: Did the magistrate err in ordering the appellant to serve a licence cancellation period effective from 22 November 2018 without deducting, in accordance with s 50(2) of the Act, the period of licence suspension served by the appellant pursuant to s 51 of the [RSA]?

As indicated at the outset of this judgment, while I have resolved that part of Question 3 which concerns whether there was any evidence for the magistrate’s conclusion under s 8(4)(c) of the CPA, which itself was sufficient to cause the appeal to be allowed, I considered that, because it became unnecessary to do so in order to dispose of the appeal, I would not determine finally any of the other grounds.

Further, in respect of the other part of Question 3 (namely, whether s 49(1)(b), (f) and (a) of the RSA each create at least two offences), it also became inappropriate to be wholly conclusive given that the Director would have preferred to put further submissions on that issue before it was determined finally.

That said, given that a good deal of argument was devoted to that particular issue, and in order to give at least some guidance to magistrates who have to deal with cases raising the point at first instance (and also County Court judges who are confronted with the same point on appeal), I think I should record at least the arguments that were put, some important (albeit obiter) remarks by other judges and my tentative conclusions concerning whether paragraphs (a), (b) and (f) of s 49(1) each create at least two offences based on driving and being in charge of a motor vehicle.

Further, since the points were argued fully, I shall also make some remarks about the splitting of the prosecution case (Question 1) and the magistrate’s resort to the Form 12 (Question 2).

But I shall not address Questions 4, 5, 6 or 7 at all. Those questions either were not fully or separately argued or, to the extent that they were, could be of no real significance in other cases.

Question 3: Whether amendment of Charge 1 impermissible

Introduction

I turn first to the magistrate’s decision to amend Charge 1, which is the topic of Question 3. For convenience, I shall reproduce the question again here:

Question 3: Did the magistrate err in ordering that the charge be amended after the close of the appellant’s defence case and after 12 months had passed since the date of the alleged offence?

More particularly, the first part of Question 3, as argued, concerned whether, within the meaning of s 8(3) of the CPA, the “amendment of [Charge 1] [had] the effect of charging a new offence”. This question, the parties accepted, turned on the related question whether s 49(1)(b) creates at least two offences, one based on driving, the other on being in charge of, a motor vehicle. In this case, as I have said, the same issues arose under paragraphs (f) and (a) of s 49(1).

The second part of Question 3, as argued, concerned whether the criteria in s 8(4) of the CPA were established. It is this second part of Question 3 — and, in particular, whether there was evidence for the magistrate’s conclusion under s 8(4)(c) — that has determined the outcome in this appeal.

While there were nice questions raised on this appeal about the meaning and scope of s 8(4)(a) and (b) as well, those issues need not be determined. That said, it will be convenient to rehearse counsel’s arguments on all aspects of both parts of Question 3 on the first day of the appeal (which included references to s 8(4)(a) and (b)), before turning to the resolution of the principal issue under the second part of the question on the second day, and then to my (obiter) remarks concerning the first part of that question.

The provisions applicable to amending charge-sheets

Introduction

Before turning to those matters, it is convenient to set out the major statutory provisions relevant to Question 3, commencing with those applicable to the amending of charge-sheets in the Magistrates’ Court.

Sections 5, 6, 7, 8 and 77A of the CPA

Section 8 of the CPA provides as follows:

(1)The Magistrates’ Court at any time may order that a charge-sheet be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.
(2)If a charge-sheet is amended by order under this section, the charge-sheet is to be treated as having been filed in the amended form for the purposes of the hearing and all proceedings connected with the hearing.
(3)An amendment of a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of the period, if any, within which a proceeding for the offence may be commenced.
(4)If a limitation period applies to the offence charged in the charge-sheet, the charge-sheet may be amended after the expiry of the limitation period if—
(a)the charge-sheet before the amendment sufficiently disclosed the nature of the offence; and
(b)the amendment does not amount to the commencement of a proceeding for a new offence; and

(c) the amendment will not cause injustice to the accused.

While there was no dispute that the amendments in this case were made outside the limitation period applicable to summary offences charged under s 49(1) of the RSA, it is as well to set out the bases for that concession.

Section 7(1) of the CPA provides that:

A proceeding for a summary offence must be commenced within 12 months after the date on which the offence is alleged to have been committed except where—
(a)otherwise provided for by or under any other Act; or
(b)the accused gives written consent, and the DPP or a Crown Prosecutor consent, to the proceeding being commenced after the expiry of that period.

Section 77A of the RSA provides for extension of the limitation period fixed by the CPA for certain prosecutions,[32] but has no application to the summary offences created by s 49(1). Nor is this a case where Mr Daly gave written consent so as to trigger the application of s 7(1)(b). Accordingly, a proceeding for a summary offence against any of the provisions of s 49(1) in this case had to be commenced within 12 months after the date on which the offence is alleged to have been committed.
[32]Section 77A of the Criminal Procedure Act 2009 (Vic) extends the limitation period to two years only for a proceeding for an offence under Division 4 of Part 10 (i.e. ss 171-178) against a person in any capacity other than as a driver or operator of a vehicle.

Finally, ss 5 and 6 of the CPA address the commencement of criminal proceedings in the Magistrates’ Court. Relevantly s 5(a) provides that a criminal proceeding is commenced by filing or signing a charge-sheet in accordance with s 6. Section s 6(1) provides as follows:

(1) A criminal proceeding is commenced—
(a)by filing a charge-sheet containing a charge with a registrar of the Magistrates’ Court; or
(b)if the accused is arrested without a warrant and is released on bail, by filing a charge-sheet containing a charge with a bail justice; or
(c)if a summons is issued under section 14, at the time the charge-sheet is signed.

Thus, given the terms of ss 6(1)(a) and (c) and the information set out earlier in these reasons, the proceeding for each offence was commenced on 3 September 2014, when F/C Karamoshos filed the charges and had a summons issued. It will be remembered that, in this case, the offences were alleged to have been committed on 2 August 2014. Thus, the initial commencement was well within time.

The application to amend, however, was not made until 26 September 2018, and the amendment of Charge 1 was not made until 22 November 2018. Accordingly, given the terms of ss 7(1) and 8(3), because each purported amendment was to be made after (indeed, over three years after) the expiry of the period within which a proceeding for each offence against s 49(1) may be commenced, such an amendment could not be made “if it [had] the effect of charging a new offence”.

Further, s 8(4) allowed an amendment after the expiry of the limitation period, but only if all of the three criteria listed in paragraphs (a), (b) and (c) of that subsection were established.

Section 8(3): Amendment has the effect of charging a new offence

As T Forrest J explained in Bchinnati v Connolly & Ors (“Bchinnati”):[33]
[33]Bchinnati v Connolly & Ors [2014] VSC 623 at [9]-[11] (per T Forrest J).

[9] A criminal proceeding in the Magistrates’ Court is commenced by, inter alia, the filing of a charge sheet containing a charge.[34] Historically, the time limit for the filing of a charge-sheet for a summary offence was 12 months after the date on which the alleged offence was committed.[35] Amendments to the charge after the expiration of this period were permissible provided they did not have the effect of charging a new offence. So much was unequivocally held by the Court of Appeal in DPP v Kypri, for example, which considered the amendment power conferred by s 50 of the Magistrates’ Court Act 1989:
[34]Criminal Procedure Act 2009 (Vic), s 6(1)(a).
[35]Magistrates’ Court Act 1989 (Vic), s 26(4) (repealed).
The rule is that an amendment which clarifies a charge is permissible and an amendment which goes further than that is not. So, an amendment may be permitted out of time when, despite the amendment, the offence charged stays the same. But an amendment will not be allowed out of time if it would result in the formulation of a new and different charge. The latter is treated as an impermissible attempt to avoid the limitation period.[36]

[10] This gloss has been taken up by the provisions of the [CPA] that deal with orders for the amendment of a charge-sheet. [His Honour then set out ss 8(1), (2) and (3) of the CPA]:
…

[11] [Section 8(4)] then sets out the circumstances in which it will be permissible to amend the charge sheet after the expiration of the limitation period. They are in substance the circumstances described in Kypri and are conceded to have no bearing on the outcome of this appeal.

[36]DPP v Kypri (2011) 33 VR 157 at 165[23] (per Nettle JA, with Ashley and Tate JJA agreeing) (citations omitted); see, also, Broome v Chenoeth (1946) 73 CLR 583 at 601; Ciorra v Cole (2014) 150 A Crim R 189.

It will be noticed, from that particular part of Nettle JA’s judgment in DPP v Kypri (“Kypri”)[37] which was extracted by T Forrest J in Bchinnati, that his Honour spoke of “a new and different charge”, whereas s 8(3) speaks only of an amendment that “has the effect of charging a new offence”. Whether there is any difference between those turns of phrase need not be determined on this appeal.
[37]DPP v Kypri (2011) 33 VR 157 (Nettle, Ashley and Tate JJA).

What I think can be said about s 8(3), however, is at least the following. It seems plain enough that, in some cases, an amendment alleging an offence separate from the original offence charged will be sufficient to have “the effect of charging a new offence” within the meaning of s 8(3). That was the basis upon which this appeal was conducted. In particular, as will be seen later, I understood Mr Carr to concede (on the first day of the appeal hearing) that, if the amendment to Charge 1 amounted to more than a change in particulars and instead alleged a separate offence, then it would have had the effect of alleging a new offence and therefore would have been contrary to s 8(3).

In other cases, however, it may be that the legal and factual bases for both the original charge and the amended charge are so similar or that they overlap in such a way that the fact that the amended charge alleges a separate offence will not of itself necessarily be sufficient to have “the effect of charging a new offence” within the meaning of s 8(3).

Consider, for example, a case in which it is alleged that the accused, encouraged by another standing beside him, struck a third person. The accused is charged initially with assault in company (contrary to s 24(2) of the Summary Offences Act 1966 (Vic) (“the SOA”)). Then assume that the “in company” allegation is dropped (say, because of doubt that the bystander encouraged the assault) and is deleted from the charge-sheet, so that the charge now alleges an assault simpliciter (contrary to s 23 of the SOA). In such a case, it may well be arguable that, because alleged assault simpliciter was wholly subsumed (both factually and legally) by the alleged assault in company, the amendment did not have “the effect of charging a new offence”, even though assault in company and assault simpliciter are different offences created by separate provisions of the SOA.

Whether or not the foregoing is the correct analysis need not be determined in this case. But it does show that, in some circumstances, it may be arguable that merely charging a separate offence (and dropping an associated factual allegation) might not amount to having the effect of charging a new offence for the purposes of s 8(3).[38]
[38]A similar question might arise under s 8(4)(b) with respect to the requirement that “the amendment does not amount to the commencement of a proceeding for a new offence”.

The offence provisions

Section 49(1)(a), (b) and (f) of the RSA

I turn next to the provisions at issue pursuant to which Mr Daly was charged in Charges 1, 2 and 3.

At the time of the alleged offending, s 49(1)(a), (b) and (f) of the RSA provided as follows (and still do today):[39]
[39]My emphasis.

(1) A person is guilty of an offence if he or she:
(a)drives a motor vehicle or is in charge of a motor vehicle while under the influence of intoxicating liquor or of any drug to such an extent as to be incapable of having proper control of the motor vehicle; or
(b)drives a motor vehicle or is in charge of a motor vehicle while the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her blood or breath; or
…
(f)within 3 hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis by a breath analysing instrument under section 55 and—
(i)the result of the analysis as recorded or shown by the breath analysing instrument indicates that the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her breath; and
(ii)the concentration of alcohol indicated by the analysis to be present in his or her breath was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle; …

The reference to “driving” in Charge 2

It will be remembered that, of the three charges brought pursuant to s 49(1)(b), (f) and (a), it was only Charge 2 that mentioned “driving”. Now that I have set out the terms of s 49(1)(f) in full, it can be seen that the reference to “driving or being in charge of” in the latter part of Charge 2 simply reflects the wording of the latter part of the provision. Notably, the earlier reference to being “in charge” — which is the part of the charge that describes the behaviour within three hours of which there was the prescribed concentration of alcohol (or more) on the breath — is not accompanied by any reference to “driving”. In those circumstances, it cannot be said that the reference to “driving” should be taken as any indication that the charge was directed at driving behaviour. Neither Mr Carr nor, for that matter, the prosecutor below sought to argue to the contrary.

“Drives” and “driving” a motor vehicle

I turn now to the meaning of “drives” and “driving” for the purposes of the offences in paragraphs (a), (b) and (f) of s 49(1) of the RSA.

Other than in two respects in the RSA to be mentioned shortly, the terms “drives” and “driving” (or similar), as they relate to motor vehicles, are left to the common law — or at least to previous decisions on the meaning of those words in the Motor Car Act 1958 (Vic) (“the MCA”), which was the predecessor to the RSA.

Thus, in 1982, in Tink v Francis,[40] following a survey of the relevant authorities, Young CJ, sitting in the Full Court of this Court with McInerney and Southwell JJ, said this:[41]

The answer to the question in any given case whether the defendant was “driving” a motor vehicle is largely a question of fact: … In none of the decided cases has there been a suggestion that any meaning other than the ordinary meaning should be given to the word “drives”. Nor has any case attempted to give an exhaustive definition of the word. What the courts have done is to say whether in the circumstances of the particular case the defendant was driving the vehicle within the ordinary meaning of the verb. It is therefore a mistake to regard the authorities as laying down a test. There emerges, however, from a consideration of the authorities the view that before a person can be said to be driving a motor vehicle he must have at least some control over the movement and direction of the vehicle … and generally that he must have something to do with the propulsion: … The question whether a person in given circumstances is driving the car will often turn on the extent and degree to which the person was relying on the use of the driver’s controls: …

But the present situation is different. The pleas of guilty to Charges 4 and 5 aside (which, as I have said, were disclosed in any event at the outset of the hearing), the other information went only to procedural matters. This information, to a greater or lesser extent, had potential relevance to whether the prosecution had been led to believe or put on notice that a matter was or was not in issue. In my view, it is permissible for a magistrate, after hearing submissions from the parties, at least to inspect a Form 12 for the purposes of considering whether there is information therein relevant to a practice or procedural issue of that kind. That is what occurred here.

Another instance when it would be permissible to have regard to the contents of a Form 12 might be to assist in determining how a charge had been understood by an accused and/or counsel for the purposes of considering whether there was any injustice to an accused in amending a charge, within the meaning of s 8(4)(c) of the CPA. Indeed, that occurred in this very case. As indicated earlier when dealing with Question 3, in my view, it was a relevant consideration that, as early as when the Form 12 was completed, Mr Hardy had indicated that his client would plead guilty to Charges 4 and 5 but not guilty to Charges 1, 2 and 3.

While it was not an issue in this case, if this practice of showing the magistrate the Form 12 is to continue, it would be necessary to take care to ensure that nothing inadmissible or illicitly prejudicial contained in the document was disclosed to the magistrate, if that could be avoided. That said, magistrates often are called upon to exclude evidence but then put it out of mind when carrying out their fact-finding tasks. Thus, merely becoming aware of such material is unlikely to cause any difficulty. Instead, it is only the use of such inadmissible material in considering whether the charge is proved that is prohibited.

Accordingly, for those reasons, if pressed to decide the matter, I would have inclined to the view that there was no error in the magistrate considering the contents of the Form 12.

Error in characterisation of purpose of Form 12

As I have said, however, her Honour’s use of the information contained (or absent) in the Form 12 was in error. I shall address that issue under cover of Question 1, to which I now turn.

Question 1: Re-opening of the prosecution case

Introduction

It will be remembered that Question 1 is in the following terms:

Question 1: Did the magistrate err in allowing the respondent to re-open his case and lead further evidence after the close of the appellant’s defence case?

As with Question 2, so too here I shall not rehearse counsel’s submissions in any detail, albeit I shall touch upon a few.

I should add, however, that, in keeping with his initial submissions on Question 3, Mr Carr argued that Question 1 did not challenge the facts found, and relied upon, by the magistrate. In consequence, he submitted, the point could not succeed unless, on the facts found, the only permissible conclusion was that the re-opening was not open. For his part, Mr Hardy did put in issue the magistrate’s findings of fact, including that the need to prove that the PBT was conducted on a prescribed device was unforeseeable.

Given that the only point in making remarks under this question is to provide guidance in other cases, it is strictly unnecessary to determine whether the question of law should be regarded as extending to (or should be allowed to be amended to extend to) an attack on the factual bases for the magistrate’s decision. Instead, I expect it will be more useful to identify what appears to me to be in error.

In short, however, I can state that, had I been driven to deal with this question of law, I would have concluded that the magistrate was in error in several aspects of her reasoning. That said, in the end, I would have concluded that other considerations, including the relatively formal or technical nature of the evidence in question, meant that it was open to allow the prosecutor to split his case.

A brief summary of my reasons follows.

Principles

In both the Magistrates’ Court and in this Court, counsel referred to the leading authorities laying down principles on the topic, as well as several other cases involving applications of those principles.

In particular, counsel referred to The Queen v Chin[78] (“Chin”), in which the High Court summarised the principles, at common law,[79] that govern an application to re‑open a prosecution case. In their joint judgment, Gibbs CJ and Wilson J said this:[80]

The principles that govern the exercise of the discretion of a trial judge to call evidence after the close of the case for the defence have been discussed in this Court in Shaw v The Queen; Killick v The Queen and Lawrence v The Queen. The general principle is that the prosecution must present its case completely before the accused is called upon for his defence. Although the trial judge has a discretion to allow the prosecution to call further evidence after evidence has been given for the defence, he should permit the prosecution to call evidence at that stage only if the circumstances are very special or exceptional and, generally speaking, not if the occasion for calling the further evidence ought reasonably to have been foreseen. The principle applies where the prosecution seeks to call evidence to rebut matters raised for the first time by the defence; if the rebutting evidence was itself relevant to prove the prosecution case (unless, perhaps, it was no more than marginally, minimally or doubtfully relevant: Reg v Levy and Tait) and the need to give it could have been foreseen it will, generally speaking, be rejected. The principle would not prevent the prosecution from giving in reply evidence directed to an issue the proof of which did not lie on the prosecution, such as insanity, or from rebutting evidence of the accused’s good character, provided that the prosecution had not anticipated the raising of an issue of this kind and led evidence with regard to it, for the prosecution must not split its case on any issue. Also, it has been held that evidence may be given in reply to prove some purely formal matter the proof of which was overlooked in chief.

[78]The Queen v Chin (1985) 157 CLR 671 (Gibbs CJ, Mason, Wilson, Brennan and Dawson JJ).

[79]But see also s 233 of the Criminal Procedure Act 2009 (Vic) in relation to indictable offences tried in the County Court or the Supreme Court.

[80]The Queen v Chin (1985) 157 CLR 671 at 676-677 (per Gibbs CJ and Wilson J) (my emphasis; citations omitted).

To their Honours’ judgment may be added these remarks of Brennan J:[81]
[81]The Queen v Chin (1985) 157 CLR 671 at 684-686 (per Brennan J) (my emphasis; citations omitted).

The rule (sometimes referred to merely as a practice) which governs the re‑opening of the prosecution case after the close of the case for the defence, was examined in Shaw v The Queen and was reconsidered recently in Killick v The Queen and Lawrence v The Queen. The prosecution may be permitted to adduce evidence after the close of the defence case in the discretion of the trial judge. The discretion is, however, to be exercised in favour of the prosecution only in exceptional circumstances and the guiding principle is that the prosecution ought not to be permitted to split its case. That is to say, the prosecution must call all the evidence available to it in support of its case during the presentation of that case. If it fails to do so, it ought not to be allowed to remedy the situation by calling evidence in reply except in exceptional circumstances. Beyond saying that exceptional circumstances do not embrace a situation which ought reasonably to have been foreseen by the prosecution or which would have been covered if the prosecution case had been fully and strictly proved, this Court has declined, having regard to the multifarious directions which a criminal trial may take, to lay down any rigid formula. In Shaw’s Case, Dixon, McTiernan, Webb and Kitto JJ expressed the view that:
It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence.

... There is also authority for the proposition that the prosecution may be permitted to re-open its case to repair omissions of a formal, technical or non-contentious nature: see Archbold’s Criminal Pleading, Evidence and Practice, 41st ed. (1982), par. 4-414, and the cases there cited.
The relevant principle is essentially one of fairness. The accused is entitled to know the case which he has to meet so that he may have adequate opportunity to determine what questions he may wish to ask in cross-examination, what evidence, if any, he may wish to call and what objections, if any, he may wish to raise in the case against him. … The whole procedure would be undermined if the prosecution were permitted, save in exceptional circumstances, to call evidence in support of its case after the close of the case for the defence.

Reasons

As is apparent from the extracts of the magistrate’s reasons, she referred to Chin (and Killick v The Queen[82]) in her reasons. The errors, however, arose not from her Honour’s reliance on authority but in her application of the principles discussed in those cases to the facts of this case and in her findings of fact.
[82]Killick v The Queen (1981) 147 CLR 565 (Gibbs CJ, Murphy, Aickin, Wilson and Brennan JJ).

First, in her ex tempore reasons, the magistrate erroneously treated the Form 12 as if it were a document in which the defence was obliged to notify the prosecution and the Magistrates’ Court “of all the matters that are in issue for the purposes of the contested summary hearing”.[83] Similarly, in her later reasons, her Honour also observed that the Form 12 “fails to make any specific mention [of] matters in dispute” and that Mr Hardy made only “a bland reference to putting the prosecution to its proof”.[84] She went on to conclude that it was “implicit, in both of these responses, … that the device used to conduct the [PBT] was never in dispute”.[85]
[83]See paragraph [4] of the magistrate’s ex tempore reasons, extracted above at [78].
[84]See paragraph [3] of the magistrate’s later reasons, extracted above at [104].
[85]See paragraph [3] of the magistrate’s later reasons, extracted above at [104].

In my view, these aspects of the magistrate’s reasons reflect a misunderstanding of the purpose of a Form 12, defence counsel’s obligations and the fundamental requirement of proof that a PBT was conducted on a prescribed device. I shall address each in turn.

(a) First, while, as I have said under cover of Question 2, the contents of a Form 12 may be used to assist in determining whether the prosecution had been put on notice that a matter was or was not in issue, there was no obligation on Mr Hardy to disclose on that form that there was (or might be) an issue as to whether the PBT was conducted on a prescribed device. The Form 12 seems to be primarily a case management device, by which means the Registry is given information to assist in allocating matters for hearing. It also doubles as a means of giving notice to the prosecution of witnesses required and certain matters in issue (e.g., proposed prosecution evidence). But the requirement to fill out such a form does not mean that the accused (or his counsel) in doing so must disclose a defence or notify the prosecutor of what must be proved in order to make out the prosecution case (whether or not the defence intends to take issue with the element or has not yet reached a view on the point).

(b) Secondly, in particular, there was no obligation on Mr Hardy specifically to notify the prosecution or the magistrate — whether in the Form 12 or when outlining issues prior to the commencement of the case — that he would put in issue whether the PBT was conducted on a prescribed device.

(c) Finally, as was made clear in Sirajuddin,[86] proof of this fact is necessary in order to secure a finding of guilt under s 49(1)(f) of the RSA (Charge 2).[87] Thus, it is a fundamental aspect of the prosecution’s proofs.

[86]Sirajuddin v Ziino (2005) 14 VR 689 at 698[50] (per Hargrave J).

[87]In the circumstances of this case, since there was, so far as I can tell, no other evidence of Mr Daly’s being under the influence of alcohol to a substantial extent or any other means of proving that his reading was beyond the prescribed concentration of alcohol, proof that the PBT was conducted on a prescribed device may also have been a necessary step in proof of the EBT reading for the purposes of proving offences against s 49(1)(b) and (a) of the RSA (Charges 1 and 3) as well. Since this point was not answered on, nor necessary to the determination of, the appeal, I say no more about it.

Secondly, the very same series of misunderstandings caused her Honour to conclude, erroneously, that it was “implicit, in both of these responses, … that the device used to conduct the [PBT] was never in dispute”.[88] But there was simply no evidence for that conclusion.
[88]See paragraph [3] of the magistrate’s later reasons, extracted above at [104].

Alternatively, the conclusion betrays a misunderstanding of the process and is erroneous on that account. Whether or not a PBT was conducted on a prescribed device is usually within the exclusive knowledge of the police officer who conducted the test. And, I repeat, proof of that fact is essential to proof of an offence against s 49(1)(f) of the RSA where a PBT is relied on. Accordingly, it is up to the prosecution to lead that evidence. Defence counsel often will not know whether there is an issue to be made of the point unless and until the operator of the PBT gives evidence about the conduct of the PBT.

But that does not mean it is to be inferred that the failure to mention the matter in a Form 12 or in discussion at the commencement of the case in turn means that the point “was never in dispute”. As will be seen in a moment, a plea of not guilty puts all matters of prosecution proof in issue. Thus, if, in the face of a plea of not guilty with no concession on the point in question, the prosecutor fails to lead evidence of that matter when the burden of proving it fell upon him or her, it is simply wrong to say that it “was never in dispute”. For a plea of not guilty puts in issue all matters the prosecution must prove.

Thirdly, the magistrate’s misunderstanding of these matters also caused her to find, erroneously, that the need to prove that the PBT was conducted on a prescribed device was neither foreseen nor foreseeable. In particular, in her ex tempore reasons, her Honour said that “it could not be foreseen by virtue of the way in which the form was filled in”; and that “[t]he question of whether or not a PBT was lawfully applied as per the [RSA] was never foreseen or foreseeable because in my view it had neither been mentioned in the Form 12 [nor] at any other stage”.[89]
[89]See paragraph [6] of the magistrate’s ex tempore reasons, extracted above at [78].

In my opinion, however, the contrary was so. As we have seen, the test laid down in Chin is that which ought reasonably to have been foreseen (i.e. reasonable foreseeability). The need to prove this matter was plainly reasonably foreseeable, for four reasons.

(a) First, as I said a moment ago, as a matter of law, the pleas of not guilty put “everything in issue”.[90]
[90]See, for example, Latoudis v Casey (1990) 170 CLR 534 at 568 (per McHugh J).

(b) Secondly, I repeat yet again that Sirajuddin[91] makes it clear that proof that the PBT was conducted on a prescribed device is necessary in order to secure a finding of guilt under s 49(1)(f).
[91]Sirajuddin v Ziino (2005) 14 VR 689 at 696[50] (per Hargrave J).

(c) Thirdly, Mr Hardy announced in open court that he was putting the prosecution to its proof.

(d) Fourthly, there was nothing that Mr Hardy said or did to suggest that the prosecutor was relieved from proving this necessary matter.

It follows that, far from being unforeseeable, the need to prove that the PBT was conducted on a prescribed device was plainly reasonably foreseeable by any prosecutor who understood the law and was concentrating on what had been said and done thus far.

Fourthly, the magistrate erred in concluding that “this is exceptional given the dearth of description in [the Form 12]”.[92] There was nothing exceptional about it. On the contrary, instead of the failure to raise the issue in the Form 12 being exceptional, it would have been quite odd for defence counsel to be raising the point in that document or in any outline of the issues prior to the commencement of the case. It is as if the magistrate required defence counsel to say to the prosecutor, “Don’t forget that, if you are relying on a PBT, you need to prove that it was conducted on a prescribed device.” Such an expectation ignores the adversarial nature of the proceeding, that the prosecutor bears the onus of proving his case and defence counsel’s duty to his client. If there were to be any relevant exceptional circumstances, they had to arise from some other fact or facts.
[92]See paragraph [7] of the magistrate’s ex tempore reasons, extracted above at [78].

Save perhaps for two further considerations, the foregoing errors might be enough to indicate that the magistrate’s reasoning towards her conclusion was infected in such a way that the (discretionary) decision to grant the application to re-open the prosecution case should be set aside. The first qualification to such a conclusion, however, concerns her Honour’s finding that proof that the PBT was conducted on a prescribed device was a “technical aspect”[93] or of a “technical nature”.[94] The second is that there appeared to be no particular unfairness (other than leading to more protracted proceedings) occasioned to Mr Daly. I shall deal with each point in turn.
[93]See paragraph [5] of the magistrate’s ex tempore reasons, extracted above at [78].
[94]See paragraph [4] of the magistrate’s later reasons, extracted above at [104].

In addition to the passages extracted above from Chin, Mr Carr referred to the decision of the Court of Appeal of Queensland in R v CDR[95] in support of his submission that the formal or technical nature of the evidence was such that, if it did not compel the splitting of the case, it at least meant that it was open to her Honour to have granted the prosecution application. In that case, after referring to two English authorities,[96] Pincus JA, de Jersey J and Ambrose J, in a joint judgment, observed that one of the exceptions to the general rule against splitting a prosecution case is that “formal matters may be proved … as long as it is kept in mind that allowing a re-opening is an exceptional course”.[97] In Mr Carr’s submission, that was this case.
[95]R v CDR [1996] 1 Qd R 183 (Pincus JA, de Jersey and Ambrose JJ).
[96]R v Central Criminal Court, ex parte Garner [1988] RTR 42; R v Francis (1990) 91 Cr App R 271.
[97]R v CDR [1996] 1 Qd R 183 at 185-186 (per Pincus JA, de Jersey J and Ambrose J).

Mr Carr also referred to four instances in which superior courts held that the magistrate in question ought to have permitted, or was right (or at least not wrong) to have permitted, the prosecution to re-open its case and tender evidence in relation to the identity of a breath testing device.[98] Thus, I understood his submission to be that proof that the PBT in question was conducted on a prescribed device is at a similar level of formality or technicality.
[98]Henning v Lynch [1974] 2 NSWLR 254 at 259 (per Jeffrey J); McDonald v Camerotto (1984) 36 SASR 66 at 69-77 (per Cox J); Blair v County Court [2005] VSC 213 (Ashley J); and Donegan v Jordan (2014) 245 A Crim R 259 (Penfold ACJ).

As helpful as those authorities are, in one way or another, each is distinguishable from the present case. It is not necessary to identify the points of distinction here. In the end, were the point to be decided finally, it would have to turn on its own facts in view of the principles laid down in the authorities.

If forced to decide, I would say that, while it is a close-run thing, in my view, it was open to the magistrate to regard proof that the PBT was conducted on a prescribed device as a mere technical or formal matter, at least in the circumstances of this case. As will have been noticed when, earlier in this judgment, I set out the evidence-in-chief of F/C Karamoshos upon his being recalled, the evidence concerning the prescribed device was indeed very technical or formal in nature, and was given easily and quickly.

The second qualification I mentioned a moment ago concerns the absence of any (meaningful) unfairness to Mr Daly in the splitting of the prosecution case. At once, I recognise that, in this case, unlike many of the numerous examples in the law reports where similar points have arisen, the application to re-open came after Mr Daly had gone into evidence and closed his case. That said, as can be seen from my earlier summary of the cross-examination of F/C Karamoshos upon his being recalled, there was no challenge to his evidence. Further, Mr Daly was given the opportunity to give further evidence on the topic if he wished, but Mr Hardy announced that he declined to do so.[99] Finally, in submissions to the magistrate, nothing was made of the evidence concerning that the PBT was conducted on a prescribed device. In those circumstances, I think it is right to say that the magistrate proved to be correct when she observed, in her ex tempore reasons, that “the accused is not prejudiced by this [course of action]”.[100]
[99]See paragraph [5] of the magistrate’s later reasons, extracted above at [104].
[100]See paragraph [8] of the magistrate’s ex tempore reasons, extracted above at [78].

Earlier, I said that there was nothing exceptional in the failure of defence counsel to raise the point in the Form 12. Indeed, Mr Hardy’s approach was both conventional and correct. I do think, however, that it was exceptional that the prosecutor initially failed to lead evidence that the PBT was conducted on a prescribed device. It was basic. The judgment of Hargrave J in Sirajuddin[101] is reported in the authorised reports and is a decision of long-standing. All of those prosecuting drink-driving offences would (or should) be aware of it. To my eye, it looks as if the prosecutor completely overlooked the point. While he said he relied on the absence of any notice of the point in the Form 12, if that were so, for the reasons I have given, that is just as unfortunate as merely missing the point.
[101]Sirajuddin v Ziino (2005) 14 VR 689 at 698[50] (per Hargrave J).

It must be said, albeit with some reluctance, that it is obvious that the prosecutor was not very well prepared for this case at its commencement. In his defence, the transcript reveals that the matter was foisted upon him at the last minute, and that he spent most of his time trying to catch up. It must never be forgotten, however, that drink-driving law is tricky and, more importantly, that we all make mistakes. Anyone who thinks otherwise is mistaken. While a good deal more would be expected usually, I think the prosecutor was entitled to some leeway in view of his receipt of a ‘hospital handpass’. Moreover, while I have acknowledged that this area of the law is riddled with traps for all players, there was no suggestion that mistakes of this kind are prevalent amongst prosecutors. If I am wrong about that, then hopefully this prosecutor’s experience will sound a note of caution to his colleagues.

Overall, when regard is had to the formal or technical nature of the evidence, the handicap under which the prosecutor laboured and the absence of any (meaningful) unfairness to Mr Daly, I am satisfied that it was open to find that the circumstances were exceptional and that the splitting of the prosecution case was justified. In fact, despite my criticism of some of her reasons, I think her Honour’s decision was correct.

Accordingly, if driven to answer this question, I would have said that the magistrate did not err in allowing the prosecutor to split his case.

Conclusion

It is for those reasons that I allowed the appeal and made the orders set out earlier.

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[2020] VSC 506

17 August 2020