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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daly v Karamoshos

Details

AGLC: Daly v Karamoshos [2020] VSC 506
Case: [2020] VSC 506
Decision Date: 17 August 2020

CaseChat Overview and Summary

In the case of Daly v Karamoshos, the appellant was charged with driving a motor vehicle while under the influence of alcohol, under section 3 of the Road Safety Act 1986 (Vic). The charge alleged that the appellant was in charge of a motor vehicle while the concentration of alcohol in his breath exceeded the prescribed limit. The matter was heard in the County Court of Victoria, presided over by Judge McInerney. The appellant appealed against his conviction and sentence to the Court of Appeal, which comprised of Beach, Redlich and Davis JJA.

The legal issues that the Court of Appeal was required to decide were whether the magistrate erred in allowing an amendment of the charges beyond the limitation period, and whether the amendment had the effect of charging a new offence. The appellant argued that the amendment to the charges, which added the words “did drive or” to the existing charge, created a separate offence of “driving” and “being in charge of” a motor vehicle. The Court of Appeal also considered whether there was any evidence for the magistrate’s finding that the amendment would not cause injustice to the appellant. Additionally, the Court of Appeal examined whether the magistrate erred in allowing the respondent to re-open the case (after the close of the defence case) to prove that a preliminary breath test was conducted on a “prescribed device”. The Court of Appeal also considered whether, in considering the application to re-open the case, the magistrate erred in having regard to the contents of “Form 12” completed after the summary case conference.

The Court of Appeal held that the amendment to the charges beyond the limitation period was impermissible, as it had the effect of charging a new offence. The Court of Appeal also held that the provisions of the Road Safety Act 1986 (Vic) created separate offences of “driving” and “being in charge of” a motor vehicle. The Court of Appeal found that there was no evidence to support the magistrate’s finding that the amendment would not cause injustice to the appellant. Furthermore, the Court of Appeal held that the magistrate erred in allowing the respondent to re-open the case to prove that a preliminary breath test was conducted on a “prescribed device”, and in having regard to the contents of “Form 12” completed after the summary case conference. The Court of Appeal allowed the appeal, set aside the finding of guilt and sentence, and substituted a finding of not guilty and dismissal of the charge.

The Court of Appeal ordered that the finding of guilt and sentence be set aside, and that a finding of not guilty and dismissal of the charge be substituted. The Court of Appeal also ordered that the appellant be paid costs of the appeal, to be taxed if not agreed. The Court of Appeal held that the errors made by the magistrate were material, and had a significant impact on the outcome of the case. The Court of Appeal emphasised the importance of ensuring that the proper procedures are followed in criminal proceedings, and that the rights of the accused are protected.

Orders