Director of Public Prosecutions v Babacan (a pseudonym)

+SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0106

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
ABDUL BABACAN (A PSEUDONYM)	Respondent

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JUDGES:	McLEISH, LYONS and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2024
DATE OF JUDGMENT:	7 October 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 228
JUDGMENT APPEALED FROM:	[2024] VCC 795R² (Judge Trapnell)

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STATUTORY CONSTRUCTION – Criminal Procedure Act 2009 (‘CPA’) ch 5, s 159(3), sch 1 cl 1(b) – Indictments – Dangerous driving causing death and dangerous driving causing injury – Whether charge in indictment failed to comply with CPA, sch 1 cl 1(b) – Whether charge contained ‘particulars that are necessary to give reasonable information as to the nature of the charge’ – Charge provided details of date, place and victim of dangerous driving – Whether judge correct to conclude charge did not comply and to order permanent stay – Charge complied with cl 1(b) sch 1 of CPA – Leave to appeal granted – Appeal allowed.

Crimes Act 1958, ss 319(1), 319(1A); Criminal Procedure Act 2009, ss 159, 182, 165, 224, sch 1.

Fox v Director of Public Prosecutions (Vic) (2022) 66 VR 223, applied; Baiada Poultry Pty Ltd v Glenister (2015) 257 IR 204, distinguished.

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Counsel
Applicant:		Ms E Ruddle KC with Mr L McAuliffe
Respondent:		Mr G Traczyk
Solicitors
Applicant:	Ms A Hogan, Solicitor for Public Prosecutions
Respondent:	MK Law

MCLEISH JA
LYONS JA
KAYE JA:

This interlocutory appeal brought by the Director of Public Prosecutions (the ‘Director’) raises issues about the degree of particularity required in respect of a charge in an indictment filed by the Director under s 159 of the Criminal Procedure Act 2009 (the ‘CPA’). Section 159(3) of the CPA provides that an indictment must comply with sch 1. Clause 1(b) of that schedule requires that a charge must ‘contain the particulars that are necessary to give reasonable information as to the nature of the charge’.[1]
[1]CPA, sch 1 cl 1(b).
In this case, the respondent was charged on indictment with one charge of dangerous driving causing death of a person contrary to s 319(1) of the Crimes Act 1958 (the ‘Crimes Act’), and one charge of dangerous driving causing serious injury to a person contrary to s 319(1A) of the Crimes Act. Each of the charges relevantly states that the respondent caused the death of one person and serious injury to another ‘at Welshpool in Victoria on the 25^th day of November 2021 by driving a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances of the case’.
After a series of hearings in mid-April and early June 2024, on 7 June 2024 a judge of the County Court determined that:[2]
(a)each of the charges was ineffective and insufficient to found convictions, in that each failed to sufficiently particularise the ‘manner’ of the respondent’s driving that was said to be ‘dangerous’;
(b)consistent with s 166(1) of the CPA, the charges were not invalid by reason of these failures;
(c)in light of the failure of the Director to amend the indictment, it would be an abuse of the Court’s process for the applicant to proceed to trial on the charges, with the result that there ought be a permanent stay of the charges.
[2]DPP v Babacan [2024] VCC 795R² (the ‘Reasons’). The judge adopted a pseudonym in place of the name of the respondent ‘in order not to prejudice the administration of justice’: see footnote 1 of the Reasons. We have also adopted that pseudonym given that the Director did not contend that a different approach ought be adopted in this Court.
Pursuant to s 295(2) of the CPA, the Director now seeks leave to appeal against the conclusion of the judge set out in [3(a)] (proposed ground 1) and against the permanent stay of the charges in any event (proposed ground 2). The judge has certified under s 295(3) of the CPA that this interlocutory decision was of sufficient importance to justify determination in an interlocutory appeal.
For the reasons that follow, we would grant leave to appeal in relation to proposed ground 1 and allow the appeal. This is because we consider that the Indictment complies with s 159 of the CPA and cl 1(b) of sch 1 to the CPA. As a result, it is unnecessary to address proposed ground 2.

Relevant facts

The Director filed Indictment No N 11781704 (the ‘Indictment’) against the respondent which contained the following two charges, the first under s 319(1) of the Crimes Act and the second under s 319(1A) of the Crimes Act:
Charge 1 – the Director of Public Prosecutions charges that [the respondent] at Welshpool in Victoria on the 25^th day of November 2021, by driving a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances of the case, caused the death of [alleged victim one].
Charge 2 – the Director of Public Prosecutions charges that [the respondent] at Welshpool in Victoria on the 25^th day of November 2021, by driving a motor vehicle in a manner that was dangerous to the public having regard to all the circumstances of the case, caused serious injury to [alleged victim two].
A Summary of Prosecution Opening for trial was filed on 24 January 2024 in the County Court pursuant to s 182 of the CPA (the ‘Original Summary’). The respondent filed a Defence Response to the Original Summary in which he stated that he would plead not guilty to both charges.
The trial was listed to commence on 17 April 2024 with an estimated length of 10 days. On that day, a number of pre-trial issues were raised. Relevantly, counsel for the respondent submitted that the charges did not make clear what acts or omissions were alleged to constitute the ‘manner’ in which the respondent’s driving was ‘dangerous’. Counsel for the applicant rejected any such suggestion that was unclear, relying upon [69] to [73] of the Original Summary. The judge concluded that that the respondent was entitled to particulars in accordance with cl 1(b) of sch 1 to the CPA and ordered the Director to amend the Indictment by adding particulars of what was alleged to constitute the ‘manner dangerous’ of the respondent’s driving (the ‘17 April order’). The trial was adjourned on 18 April 2024.
On 18 April 2024, the Director made submissions before the judge seeking to vacate the 17 April order. Counsel for the respondent clarified that he was seeking further and better particulars of both charges, not an order that the charges were invalid for being insufficiently particularised. Counsel for the Director submitted that: (a) in Fox v Director of Public Prosecutions (Vic) (‘Fox’),[3] this Court narrowed the requirements for what constitutes necessary particulars for a ‘valid’ charge; and that (b) ‘dangerousness’ was not required to be particularised in the charge as that was properly for the summary of prosecution opening pursuant to s 182(2)(b) of the CPA. Nevertheless, as the respondent was not requesting the Indictment be amended, the Director agreed to provide an amended summary of prosecution opening that day, subject to any objection by the respondent. The trial was adjourned to 22 April 2024 and the 17 April order was vacated.
[3](2022) 66 VR 223.
An amended summary of prosecution opening (the ‘Amended Summary’) was filed on 18 April 2024 and the respondent indicated that no issue was taken with it. The Amended Summary contained revised paragraphs [69] to [72] which provide:
[69]The prosecution case is that the accused drove in a manner dangerous to the public in all of the circumstances. Specifically, the accused failed to properly attend to the driving task such that it was a serious breach of the proper management of the truck and he failed to maintain proper control of the truck.
[70] The manner in which the accused drove included:
(a)He drove for a period of time prior to the collision without both hands on the steering wheel, and whilst holding something in one of his hands, making it difficult to maintain of [sic] the truck in the event of a hazard, including hazards which might not otherwise have caused a vehicle to veer from its course; and
(b)He drove in that manner for a substantial time, at a speed which was at or approaching the speed limit, where in the circumstances it was unsafe to do so; and
(c)While driving in this manner, he looked down from the road. Shortly afterwards, the vehicle veered off course and into the opposing lane; and
(d)Once the vehicle commenced veering from its lane, the accused failed to take any, or any sufficient, steps to remedy that situation and to ensure the truck did not remain in the incorrect (oncoming) lane. For a time during this period, the accused had no hands on the steering wheel at all. The accused did not enter any substantial steering input. Nor is there any evidence of braking. [footnote omitted]
[71]The circumstances in which the accused drove include:
(a)The fact that the accused was driving a large heavy vehicle; and
(b)Characteristics in the road surface, including rutting, were observed, however (had the accused been driving with due care) these should not have caused the truck’s veering movement, and the road had been successfully navigated by many other drivers; and
(c)The fact that there was a single lane in each direction; and
(d)The presence of other vehicles; and
(e)The accused’s knowledge or belief as to the state of the road (he knew or believed it had several potholes or imperfections), the heavy nature of the vehicle he was driving, and the road composition, namely the fact it had only one lane in both directions and a posted speed limit of 100km/h in both directions.
[72] The prosecution relies on the combination of the manner of driving and the circumstances listed above to demonstrate that the driving of the accused involved a serious breach of the proper control of the vehicle. Ultimately, the jury are to determine whether the driving was dangerous, relying on some or all (whether alone or in combination) of the manner and circumstances listed above.
The Court reconvened on 22 April 2024 to conduct a voir dire. At that time, the judge expressed to counsel for the Director that, after further considering the reasons in Fox, he was of the preliminary view that the two charges did not comply with cl 1(b) of sch 1 to the CPA with the result the charges were ‘ineffective’ and unable to found a conviction. After hearing further argument from the parties, the judge indicated (without ruling) that his preliminary view had not changed. In response, counsel for the Director indicated the Director did not wish to apply to amend the charges.
On 24 April 2024, the parties appeared again before the judge. The Director submitted that it was open for the Court on its own motion to amend a charge under s 165 of the CPA. The judge raised the possibility of reserving questions of law for determination by this Court under ss 302 and 395 of the CPA as to whether: (a) the charges were ineffective and insufficient to found a conviction; and (b) the Court could order of its own motion that the Indictment be amended. This was in a context where counsel for the respondent submitted that, if the charges were ineffective, the respondent would seek a permanent stay of them. Ultimately, the judge concluded that he should rule on whether the charges were ineffective or insufficient to found a conviction.

Judge’s reasons

The judge delivered written reasons on 4 June 2024 (the ‘original reasons’). He received written submissions from the parties on 6 June and heard further argument on 7 June 2024. He delivered further reasons that day which contained the original reasons and an addendum to them ie together, the ‘Reasons’.[4] We have set out the judge’s conclusion in summary form in [3] above.
[4]Reasons, [89]–[108].
As to whether each of the charges failed to sufficiently particularise the ‘manner’ of the respondent’s driving that was said to be ‘dangerous’, the judge considered a number of cases which relate to the degree of particularity required both at common law and under statute, including Baiada Poultry Pty Ltd v Glenister (‘Baiada’),[5] PPP v The Queen (‘PPP’)[6] and Fox.[7] We pause to note each of those cases focused on quite distinct issues. The judge also had regard[8] to the application of the principles in Southgate Management Pty Ltd v Nitschke (‘Southgate’)[9] and Wells v Stillman (‘Stillman’).[10]
[5][2015] VSCA 344.
[6](2010) 27 VR 68.
[7]Reasons, [46]–[54].
[8]Ibid [56]–[81].
[9][2018] VSC 236.
[10][2020] VSC 51.
Turning to the charges on the Indictment, the judge noted that ‘manner’ was not defined in the CPA. He stated that:
To inform someone that the ‘manner’ of their driving is dangerous to the public, tells them nothing regarding the essential factual elements of each offence. It merely states the legal elements of the alleged offences. The nature and extent of the accused’s acts or omissions are left entirely unstated.[11]
[11]Reasons, [84] (emphasis in original).
The judge continued:
The charges are insufficient to bring home to a reasonable defendant the essential elements of the offences alleged. What was it about the manner of [the respondent’s] driving which made it dangerous to the public? What is ‘the particular act, matter or thing that the charge is based upon’? What should [the respondent] have done or not done in all the circumstances of the case to have avoided committing the offences charged?[12]
[12]Ibid [85].
The judge then concluded that, as a result, the charges were unfair to the respondent because they did not enable him to exercise his right to object to evidence on the ground of relevance, they did not permit him to know how the charges might be answered, they did not provide him with the opportunity to test the credibility of the prosecution witnesses and they did not enable the trial judge to instruct the jury properly as to the law to be applied.[13] As a result, the judge concluded that the charges did not provide fair and reasonable particularity as to the nature of the offences charged.[14]
[13]Ibid [86].
[14]Ibid [87].
The judge then gave the parties an opportunity to consider these reasons and make further applications and/or seek further orders. As noted above, further submissions were received on 6 June 2024 and an addendum to the reasons was published on 7 June 2024. In the addendum, the judge noted that the prosecution did not seek to amend the charges. The judge concluded that it was not appropriate for him to order an amendment of the charges of his own motion.[15] He also concluded he did not have the power to dismiss the charges.[16] He then addressed the respondent’s application for a permanent stay pursuant to the Court’s inherent power to prevent an abuse of process. The judge stated:
However, s 166(1) of the CPA provides: ‘An indictment is not invalid by reason only of a failure to comply with Schedule 1’. This is exactly the situation in this case. Accordingly, it is, in my opinion, not appropriate to grant a permanent stay of the indictment.
Nonetheless, I am of the opinion that it would be an abuse of the Court’s processes for the DPP to proceed to trial on Charges 1 and 2 on the indictment.
Accordingly, I order that Charges 1 and 2 on [the Indictment] be permanently stayed.[17]

This application

[15]Ibid [92]–[97].

[16]Ibid [98]–[100].

[17]Ibid [102]–[104].

The Director seeks leave to appeal in respect of two proposed grounds, namely
1.The learned trial judge erred in his decision that the charges are ineffective and insufficient to found convictions in an unamended form; and
2.The learned trial judge erred in his decision to permanently stay the [I]ndictment.
Proposed ground 1 raises the question whether the Indictment complied with the requirements of the CPA, and most relevantly s 159(3) and cl 1(b) of sch 1 to the CPA, with the effect that the charges were ineffective or insufficient. That depends upon the proper construction of the language of these provisions in light of their statutory context, scope and purpose. Further, proposed ground 2 raises the question whether the judge was correct to order a permanent stay if the charges were ineffective given that, by reason of the Amended Summary, the respondent had adequate notice of the way in which it was alleged he drove ‘in a manner dangerous’. Before addressing these issues, we shall set out the relevant provisions of the Crimes Act and the CPA.

Relevant provisions of the Crimes Act and the CPA

As noted above, charge 1 and charge 2 allege offences contrary to ss 319(1) and 319(1A) of the Crimes Act respectively. These sections provide:
319 Dangerous driving causing death or serious injury
(1)A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of another person is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).
…
(1A)A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes serious injury to another person is guilty of an indictable offence and liable to level 6 imprisonment (5 years maximum).
As to the CPA, s 159 provides:
159 DPP or Crown Prosecutor may file an indictment
(1)Subject to the Public Prosecutions Act 1994, the DPP or a Crown Prosecutor in the name of the DPP may file an indictment.
(2)An indictment may be filed at any time, except where otherwise provided by or under this or any other Act.
Note
Section 163 provides time limits for the filing of certain indictments.
(3)An indictment must—
(a)be in writing; and
(b)be signed by the DPP or a Crown Prosecutor in the name of the DPP; and
(c)comply with Schedule 1.
…
Clause 1 of sch 1 provides:
1 Statement of offence
A charge must—
(a)state the offence that the accused is alleged to have committed; and
(b)contain the particulars, in accordance with clause 2, that are necessary to give reasonable information as to the nature of the charge.
There are other clauses of sch 1 to the CPA relevant to the determination of this application. Clauses 2 and 3(2) of sch 1 to the CPA provide:
2 Statement of particulars
(1)Subject to subclause (2), particulars of the offence charged must be set out in ordinary language and the use of technical terms is not necessary.
(2)If a rule of law or a statute limits the particulars that are required to be given in a charge, nothing in this clause requires any more particulars than those required.
3 Statutory offence
…
(2)For the purposes of clause 1(a), a statement of a statutory offence is sufficient if it—
(a)identifies the provision creating the offence; and
(b)describes the offence in the words of the provision creating it, or in similar words.
There are other provisions of the CPA relevant to this application. First, ss 165 and 166 relevantly provide:
165 Order for amendment of indictment
(1)The court at any time may order that an indictment be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.
…
166 Errors etc. in indictment
(1)An indictment is not invalid by reason only of a failure to comply with Schedule 1.
Second, s 182 of the CPA provides:
182 Summary of prosecution opening and notice of pre-trial admissions
(1)Unless the court otherwise directs, at least 28 days before the day on which the trial of the accused is listed to commence, the DPP must serve on the accused and file in court—
(a)a summary of the prosecution opening; and
(b)a notice of pre-trial admissions.
(2)The summary of the prosecution opening must outline—
(a)the manner in which the prosecution will put the case against the accused; and
(b)the acts, facts, matters and circumstances being relied on to support a finding of guilt.
(3)The notice of pre-trial admissions must identify the statements of the witnesses whose evidence, in the opinion of the DPP, ought to be admitted as evidence without further proof, including evidence that is directed solely to formal matters including—
(a)continuity; or
(b)a person's age; or
(c)proving the accuracy of a plan, or that photographs were taken in a certain manner or at a certain time.
(4)If an accused has not received, under section 147, a copy of a statement identified in a notice of pre-trial admissions, the notice must contain a copy of the statement.

Contentions

In summary, the Director submitted that the Indictment complied with s 159(3) and cl 1(b) of sch 1 to the CPA. The Director submitted that the function of the statement of the charge in the Indictment was to set out the general nature of the charge. By contrast, the function of the prosecution opening required under s 182 of the CPA was to provide further detail of the way the prosecution was to put its case and the acts, facts, matters and circumstances to be relied upon. In this regard, counsel for the Director drew attention to the distinction between the words:
(a)‘the particulars ... that are necessary to give reasonable information as to the nature of the charge’ required to be stated in the charge;[18] and
(b)‘the acts, facts, matters and circumstances’ required to be outlined in the summary of prosecution opening.[19]
[18]CPA sch 1 cl 1(b).
[19]Ibid s 182(2)(b).
Further, counsel for the Director noted that the summary of prosecution opening is to be served on the accused at least 28 days before trial and that, under s 224(2) of the CPA, the prosecutor is limited to the matters set out in the summary of prosecution opening, unless the judge considers that exceptional circumstances exist.
As to the Indictment, in addition to specifying the offence that the respondent is alleged to have committed (as required under cl 1(a) of sch 1 to the CPA), the Director submitted that each charge particularised the date and location of the alleged offence, and the name of the alleged victim. Further, ss 319(1) and 319(1A) of the Crimes Act contemplate two types of dangerous driving, namely driving a motor vehicle ‘at a speed’ or ‘in a manner’ that is dangerous. Each charge identified that the relevant offence was driving in a manner dangerous, and not at a speed that is dangerous.
The Director submitted that this met the description of the particulars necessary to give reasonable information as to the nature of each charge for the purpose of cl 1(b) of sch 1 to the CPA. By way of example, counsel submitted that the same level of particularisation is ordinarily provided in respect of a murder charge.
In doing so, counsel for the Director relied upon the decision of this Court in Fox and the facts of the three cases which it involved.[20] We pause to note that Fox was a case involving the validity of a charge-sheet in the Magistrates’ Court under s 6 of the CPA. Section 6(3) was in the same terms as s 159 and included that the charge-sheet must ‘comply with Schedule 1’. In particular, counsel for the Director relied upon the statements of the Court in Fox to the effect that:
(a)there is a distinction at common law between those essential matters that must be contained within a charge, sometimes referred to as ‘particulars’, and those matters that must only be provided to the accused prior to any final hearing ‘which are commonly referred to as particulars’;[21]
(b)the statutory test for what a charge must contain is in cl 1(b) of sch 1 to the CPA and, while the common law may inform the content of that statutory test (ie to assist in understanding what might satisfy that requirement), it is a statutory test;[22] and
(c)whether the statutory test is satisfied in any given case is a question of fact and degree.[23]
[20]Fox, [9]–[10], [51], [73(c)]. As to the facts of the three cases, see the unreported version of the judgment in Fox, being [2022] VSCA 38, [76]–[202].
[21]Fox, [10].
[22]Ibid [51].
[23]Reasons, [51]; Fox, [53].
The respondent relied upon the judge’s reasons. He highlighted that the primary issue for determination, as the judge identified, was the requirement under cl 1(b) of sch 1 to the CPA that the charge ‘contain particulars … that are necessary to give reasonable information as to the nature of the charge’. He drew attention to the fact that each charge, in addition to identifying the relevant provision of the Crimes Act, only set out the date and place of the driving, and the name of the alleged victim. He submitted that these were insufficient particulars of each charge for the respondent to identify the nature of the charge.
The respondent also relied upon Baiada as authority for the principle that for a charge to be valid, it must identify the ‘essential factual elements’ of the offence, or alternatively, specify the manner in which the offence was committed.[24]
[24]Reasons, [45]; Baiada, [5], [15]–[16].

Consideration of proposed ground 1

In our view, the two charges on the Indictment comply with cl 1(b) of sch 1 to the CPA. This view is based upon and consistent with the decision of this Court in Fox. We are conscious that the decision in Fox related to a charge-sheet for a summary offence to be filed under ch 2 of the CPA and then progressed in accordance with ch 3 of the CPA. By contrast, the Indictment in this case was filed and to be progressed under ch 5 of the CPA. Nevertheless, s 6(3)(a)–(c) which relates to charge-sheets is in the same form as s 159(3)(a)–(c) which relates to Indictments filed by the Director or a Crown Prosecutor.
The judge had regard to the many different ways in which courts have expressed the degree of particularity required for a charge or indictment, including in Baiada and PPP. The starting point of the analysis is the reasons in Fox. This Court stated:
We pause to observe that the various different ways in which the common law approach has been framed … may do more to obfuscate than to illuminate the requirement in cl 1(b) of sch 1 that a charge contain ‘the particulars … necessary to give reasonable information as to the nature of the charge’. Given that there is a statutory test, the preferable course is … to focus on the language of the statute. While the common law can assist in understanding what might satisfy the requirement, the test is not a common law test; it is a statutory test. Further, whether the particulars provided in a charge will satisfy the statutory test will be a question of fact and degree in a given case, depending upon the offence(s) in question and the factual allegations. There is no verbal formula that can be substituted for the statutory test.[25]
[25]Fox, [51].
Earlier in the reasons, the Court noted that:
[T]he common law has always drawn a distinction between those matters that must be contained within a charge (often described as the essential elements or ingredients of the offence, but also sometimes referred to as particulars) and those matters that need not be contained within a charge but must nonetheless be provided to the accused prior to any final hearing (which are commonly also referred to as particulars).[26]
[26]Fox, [10] (citations omitted).
The Court continued:
This overlap in language remains in the CPA (in cl 1(b) of sch 1 and in s 32). But it ought not be assumed that anything that can be described as the ‘particulars of the charge’ is required to be included in the charge. That is not what cl 1(b) provides. It is only those particulars ‘necessary to give reasonable information as to the nature of the charge’ that must be included in the charge. Other particulars may be obtained under s 32 (or provided in the preliminary brief or the full brief). In our opinion, the distinction drawn at common law, between the particulars (or matters) necessary to be included in a charge, and the particulars that are not so necessary, continues to be reflected in the CPA.[27]
[27]Ibid [11].
The distinction drawn at common law between the particular matters necessary to be included in a charge and the particulars that are not so necessary is also reflected in ch 5 of the CPA. This is because of:
(a)cl 1(b) of sch 1, which provides for particulars that are necessary to give reasonable information as to the nature of the charge; and
(b)s 182(2), which provides for the provision of other particulars of the charge, being the relevant acts, facts, matters and circumstances being relied upon, to be included in the summary of prosecution opening.
In addition, it is open to an accused to request further particulars of the charges, if necessary, including by seeking an order for particulars at a directions hearing held pursuant to ss 179 and 181 of the CPA.
The issue then is whether the charges in the Indictment in this case contained the particulars ‘necessary to give reasonable information as to the nature of the charge’. As noted in [31] above, that is a question of fact and degree in a given case, depending upon the offence(s) in question and the factual allegations.
The decision in Baiada, relied upon by the respondent, emphasises the nature of the relevant offence in determining the matters to be included in the charge or indictment. Baiada concerned an offence under s 26(1) of the Occupational Health and Safety Act2004 for failure to ensure that the relevant workplace and the means of entering and leaving it were safe and without risk ‘so far as is reasonably practicable’.[28] To comply with cl 1(b) of sch 1 to the CPA, it was insufficient merely to recite the statutory language. It was necessary to specify what the accused omitted to do to ensure that the workplace met that description.[29] By contrast, this application does not concern a failure to meet an obligation. Rather, it concerns an offence by driving ‘in a manner that is dangerous’ with the effect of causing death or serious injury under ss 319(1) and 319(1A) of the Crimes Act respectively.
[28]Baiada, [51]–[53] (Ferguson and McLeish JJA).
[29]Ibid [52] (Ferguson and McLeish JJA).
In this case, each of charge 1 and 2 specified the offence that the respondent was alleged to have committed by reference to the section of the Crimes Act in accordance with cl 1(a) and cl 3(2) of sch 1. Each charge also specified:
(a)the date and place of the driving;
(b)the type of driving, namely in a manner dangerous (as opposed to at a dangerous speed); and
(c)the name of the alleged victim.
In our view, these three matters provide the particulars necessary to give reasonable information as to the nature of the charge under each of ss 319(1) and 319(1A) of the Crimes Act. Each charge sets out the essential elements of each offence in circumstances where, to adopt the language in Fox, ‘it is not necessary, in order to comply with cl 1(b), for the charge to set out all the matters that the prosecution may need to prove at trial’.[30]
[30]Fox, [73(c)].
As a result, the judge erred in concluding that the charges in the Indictment for offences against ss 319(1) and 319(1A) were invalid because they failed to set out:
(a)‘the nature and extent of the accused’s acts or omissions’;[31]
(b)‘the particular act, matter or thing that the charge is based upon’;[32]
(c)what [the respondent should] have done or not done in all the circumstances of the case to have avoided committing the offences charged.[33]
[31]Reasons, [84].
[32]Ibid [85].
[33]Ibid [85].
In light of the nature of the relevant offences, and the meaning of the words of cl 1(b) of sch 1 to the CPA in the context of ch 5 of the CPA as set out in Fox, those details or particulars were not required to be provided in the charges in the Indictment.
It is important to note that under ch 5 of the CPA further details or particulars are to be provided at a later time, not later than the summary of prosecution opening, as required by s 182 of the CPA. As detailed above at [10], the Amended Summary set out at [70] the four ways in which it is alleged the respondent drove ‘in a manner dangerous to the public’ and set out at [71] the relevant ‘circumstances’ in which the respondent is alleged to have been driving. In these paragraphs, the prosecution has set out its case with some specificity.
As noted above, the judge based his decision on what he considered to be a failure by the Director to give adequate particulars of the ‘manner’ of driving that was alleged to be dangerous. In our view, it could not be concluded that cl 1(b) of sch 1 to the CPA requires that the particulars in [70] and [71] of the Amended Summary be included in the charge on the Indictment. To include such ‘particulars’ would go well beyond what is necessary to give reasonable information as the nature of each charge, as distinct from the ‘manner in which the prosecution will put the case’ or the ‘acts, facts, matters and circumstances being relied on’ which are required to be included in the summary of prosecution opening.
As a result, we consider that the judge erred in concluding that the charges were ineffective or insufficient to found convictions.

Conclusions

In light of the views we have formed, we grant leave in respect of proposed ground 1 and allow the appeal. As a result, it is not necessary to address proposed ground 2.
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[2024] VSCA 228

7 October 2024