Director of Public Prosecutions v Babacan (a pseudonym)
[2024] VCC 795
•7 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABDUL BABACAN (A PSEUDONYM)[1] |
[1] In order not to prejudice the administration of justice, a pseudonym has been used in place of the name of the accused and the reasons have been prepared in a form which omits identifying details.
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JUDGE: | His Honour Judge Trapnell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 18, 22 and 26 April 2024 | |
DATE OF RULING: | 4 and 7 June 2024 | |
CASE MAY BE CITED AS: | DPP v Babacan (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 795R[2] | |
[2] Revision including Addendum added 7 June 2024.
RULING
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Subject:Criminal Law
Catchwords: Pre-trial Ruling – Indictment charges – Particulars – Dangerous driving causing death – Dangerous driving causing serious injury – Manner of driving alleged to be dangerous – Whether charges ineffective and insufficient to found convictions – Whether charges contain particulars necessary to give reasonable information as to the nature of the charge – Whether manner of driving sufficiently particularised – More than recitation of statute required – Fundamental requirement that charge specify act or omission which constitutes contravention
Legislation Cited: Criminal Procedure Act2009
Cases Cited:Baiada Poultry Pty Ltd v Glenister (2015) 257 IR 204 – PPP v The Queen (2010) 27 VR 68 – Fox v DPP (2022) 66 VR 223 – Southgate Management Pty Ltd v Nitschke [2018] VSC 236 – Wells v Stillman [2020] VSC 51 – Fox v DPP [2022] 66 VR 223 – DPP v Kypri (2011) 33 VR 157 – DPP v Jarvis [2018] VSCA 173 – Chow v DPP (1992) 28 NSWLR 593 – Linfox Resources Pty Ltd v The Queen (2010) 30 VR 507
Ruling: Charges fail to comply with cl 1 of sch 1 of the CPA. Permanent stay of charges granted
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E Ruddle KC Ms K Hamill | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr G J Traczyk | MK Law |
HIS HONOUR:
Introduction
1This ruling concerns the question whether each of two charges on the indictment filed in this proceeding is ineffective and, consequently, insufficient to found a conviction in unamended form,[3] by reason of a failure to contain the particulars that are necessary to give reasonable information as to the nature of each charge; specifically, what it is about the manner of Mr Babacan’s driving that is alleged to have made it dangerous to the public having regard to all the circumstances of the case.
[3] See DPP v Kypri (2011) 33 VR 157,169–70 [37] (Nettle JA), 181 [87] (Tate JA) (‘Kypri’); Fox v DPP (2022) 66 VR 223, 238–39 [52], 239 [54], 244 [73(f)], 245 [73(j)] (Kennedy, Walker and Whelan JJA) (‘Fox’).
2This question raises an issue of law that arises or is anticipated to arise in the trial that can be determined at any time before trial pursuant to the Criminal Procedure Act 2009 (‘CPA’) s 199(1)(a).
Background
3Mr Babacan, is charged on Indictment No. N11781704 with one charge of dangerous driving causing death, contrary to s 319(1) of the Crimes Act 1958 (‘CA’) and one charge of dangerous driving causing serious injury, contrary to CA s 319(1A).
4The charges on the indictment are as follows:
Charge 1 – The Director of Public Prosecutions charges that [the accused] at Welshpool in Victoria on the 25th 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 1].
Charge 2 - The Director of Public Prosecutions charges that [the accused] at Welshpool in Victoria on the 25th 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 2].
5A Summary of Prosecution Opening for Trial in unamended form[4] was filed on 24 January 2024 in the Court pursuant to s 182 of the CPA (‘Original Summary’). The accused filed a Defence Response pursuant to s 183 of the CPA, in which he states he will plead not guilty to both charges.
[4] An Amended Summary of Prosecution Opening, dated 18 April 2024 (‘Amended Prosecution Opening’) has since been filed with the Court.
The prosecution case
6The accused is charged in connection with having caused a fatal collision on the South Gippsland Highway (‘the highway’) near Welshpool at approximately 2:30pm on 25 November 2021.
7The accused, who was an experienced professional truck driver employed by a cabinetry supply company, was driving a three axle 14-tonne rigid truck along the highway in a north easterly direction when he veered into the on-coming lane and struck another vehicle in an offset head-on collision. The front-seat passenger in that vehicle died at the scene and the driver suffered serious injuries.
8At the time of the collision, the accused held a Victorian driver licence and a heavy vehicle (multiple combination) licence. The accused had commenced work at Sunshine West at 6:00 am and rested from 11:30 am to noon in Korumburra.
9The speed limit at the collision site was 100km per hour. At the time of the collision the weather was fine, the road was dry and traffic was light.
10The accused had travelled along the highway through Welshpool and was travelling northwest towards Yarram. The relevant speed limit increased from 60 km per hour (through Welshpool) to 80 km per hour and then 100 km per hour leaving Welshpool. The accused increased the speed of the truck in accordance with the changing speed limits and accelerated to approximately 100 km per hour prior to the collision.
11The other vehicle was travelling along the highway in the opposite direction, towards Toora.
12While travelling on a straight stretch of the highway, the truck veered over the middle dividing lane into the opposing traffic lane and into the path of the other vehicle. The front passenger side of the truck collided with the front passenger side of the other vehicle on the edge of the bitumen of the Welshpool-bound lane.
13The other vehicle was propelled backwards in a clockwise direction by the impact. It came to rest on the Yarram-bound lane, facing the opposite way to its direction of travel. The truck continued on its course, veered completely off the Welshpool-bound side of the road, ran over a number of small trees on the side of the road, and eventually came to rest embedded in thick scrub.
14Internal dashcam footage of the inside of the truck shows the accused was driving with only one hand on the steering wheel and the other hand in a food container, which was sitting on or near his lap. During the footage the accused travelled at varying speeds, consistent with the change in speed limits driving out of Welshpool. At no time in the internal footage did the accused have both hands on the steering wheel.
15Shortly before the truck veered to the right, the accused looked down. At one point after the truck commenced veering to the right, the accused also removed his left hand from the steering wheel, so that he had neither hand on the steering wheel. In the internal dashcam footage, the accused is not seen engaging in any steering movement after the truck veered into the on-coming traffic lane.
16The prosecution case is that the accused failed to properly attend to the driving task, and did not pay due care by failing to maintain proper control of the truck. He drove for a period of time prior to the collision without both hands on the steering wheel to enable him to respond to hazards. While driving in this manner, he looked down from the road. Shortly afterwards, the truck veered off course and into the opposing traffic lane.
17No external cause for the truck veering was found. The accused stated the truck had veered due to a ‘pothole’. Characteristics in the road surface, including rutting, were observed, however the prosecution asserts these did not cause the truck’s veering movement.
18Despite the fact the accused did not travel above the posted speed limit, the prosecution alleges the manner of his driving includes the speed at which he was travelling. That is, the accused was travelling at or approaching the speed limit, in a heavy vehicle, on a road with which he was familiar – being a road with only one lane in either direction, a posted speed limit of 100 km/h, and which the accused knew contained several potholes or imperfections. He drove in these circumstances over a substantial period of time without maintaining sufficient control of the steering wheel, and thus the truck itself.
19Once the truck veered off the highway, the evidence is that it maintained that course until it was stopped by roadside vegetation. The accused did not enter any steering input. Nor is there any evidence of braking. For a time during this period, the accused had no hands on the steering wheel at all.
20The prosecution alleges the accused’s lack of proper care and attention was a substantial and operating cause of the collision, and of the death of alleged victim 1 and the serious injuries sustained by alleged victim 2.
The pre-trial argument
21The trial was listed to commence on 17 April 2024 with a 10-day estimate. On 17 April 2024, the parties appeared before me and raised a number of pre-trial issues. Ms Hamill appeared to prosecute and Mr Traczyk appeared for the accused.
22One of the pre-trial issues Mr Traczyk raised related to how the prosecution put its case against the accused. In substance, Mr Traczyk submitted it was unclear as to which acts or omissions were alleged by the prosecution to constitute the manner of the accused’s driving that was said to be dangerous.
23Ms Hamill submitted that how the prosecution’s case was put had been articulated in the prosecution opening and that the prosecution was not required to particularise in the charges the manner in which the accused drove dangerously. Ms Hamill submitted paragraphs 69 to 73 of the Summary of Prosecution Opening alleged the manner in which the accused drove dangerously, and to the extent the prosecution is required to articulate the basis of a charge of dangerous driving causing death or serious injury it is sufficient to simply specify whether the allegation is ‘driving a motor vehicle in a manner that was dangerous to the public in all the circumstances of the case’ or ‘driving a motor vehicle at a speed that was dangerous to the public in all the circumstances of the case’.
24I considered that in accordance with Schedule 1, Clause 1(b) of the CPA, the accused was entitled to the particulars sought because they were necessary to give reasonable information as to the nature of the charge. Consequently, on 17 April 2024, I ordered the prosecution amend the indictment by adding particulars of what is alleged to constitute the dangerous manner in which the accused drove. The trial was adjourned to 18 April 2024.
25On 17 April 2024, after the pre-trial hearing, the Court received an email from the prosecution seeking an opportunity to make further submissions in relation to the order I made requiring the amendment of the indictment.
26On 18 April 2024, the parties appeared before me for this matter to be further argued and I vacated my previous order. Ms Ruddle KC appeared with Ms Hamil for the prosecution.
27At this hearing, Mr Traczyk clarified the accused’s position to be a request for further and better particulars in relation to both charges, as opposed to submitting that the charges are not sufficiently particularised and therefore ‘invalid’.
28Ms Ruddle submitted that in Fox v DPP (‘Fox’),[5] the Victorian Court of Appeal narrowed the requirements for what constitutes necessary particulars for a ‘valid’ charge. She submitted dangerousness is matter of evidence, and is an act, fact, matter or circumstance that needs to be outlined in the summary of prosecution opening pursuant to s 182(2)(b) of the CPA but is not required to be particularised in the charge.
[5] (2022) 66 VR 223.
29Given the defence were not requesting the indictment be amended, the prosecution agreed to file an Amended Summary of Prosecution Opening for Trial (‘Amended Summary’) providing greater specificity and detail regarding how the prosecution put its case on the manner of the accused’s driving said to be dangerous.[6] The defence agreed to inform the court later that afternoon if any issues arose as a result. The trial was adjourned to 22 April 2024.
[6] See Amended Summary of Prosecution Opening, dated18 April 2024 [69]–[72].
30The Amended Summary was filed with the Court on 18 April 2024 and the Court received an email from the defence confirming that no issue was taken with the Amended Summary. The Amended Summary struck out paragraphs [69] to [72] (inclusive) of the Original Summary and inserted new paragraphs in their place.
31It is necessary to fully set out the relevant paragraphs of the Amended Summary as follows:
HOW THE PROSECUTION CASE IS PUT
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 [control] of 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.
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 100 km/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.
32The Court reconvened on 22 April 2024 to conduct a voir dire. Prior to the voir dire commencing, I expressed to Ms Hamill that after considering the judgment in Fox, my preliminary view was the two charges on the indictment did not comply with Schedule 1, clause 1(b) of the CPA, resulting in the charges being ineffective and unable to found a conviction. In so doing, I was ‘candidly disclosing’ a matter of concern to me and inviting a response.[7]
[7] See Chow v DPP (1992) 28 NSWLR 593, 606 (Kirby P).
33I drew particular attention to the following passage in Fox:[8]
A magistrate had a duty to consider whether to amend a charge-sheet even if no application to amend were made, and a power to amend the charge-sheet on his or her own motion.
[8] Fox 244 [73].
34To allow Ms Ruddle an opportunity to appear, argument on this point was stood down until the afternoon. Upon resuming, I relayed my concern to the parties that the two charges, as presently drafted, recite only the elements of the offence and do not contain the particulars necessary to give reasonable information as to the nature of the charges. I also raised the question whether a magistrate’s duty to consider whether to amend a charge-sheet of their own motion[9] applies to a judge presiding over a trial on indictment.
[9] See Criminal Procedure Act 2009 (‘CPA’) ss 165, 337(1); Stait v Colenso (1902) 28 VLR 286, 288 (Williams J); Thomson v Lee [1935] VLR 360, 364 (Mann CJ); Kennett v Holt [1974] VR 644, 649 (Pape J); McMahon v DPP (unreported, Court of Appeal, 20 June 1995) 4 (Brooking JA, Charles and Callaway JJA agreeing); Kypri 170–71 [42]–[44] (Nettle JA), 174 [58] (Ashley JA); Fox 231 [22], 244–45 [73(i)]; DPP v Jarvis [2018] VSCA 173 [21]–[22] (Maxwell P, Niall and Weinberg JJA).
35Ms Ruddle submitted, Fox makes clear all that is required for a ‘sufficient’ charge is the essential elements of the offence and essential factual ingredients sufficient to allow the accused to understand what charge he faces. She submitted, the charges here contain sufficient particularisation without the manner in which the accused drove dangerously being specified. She also submitted, Fox ‘lowered the bar’ for what constitutes reasonable information.
36Ms Ruddle relied on paragraph 73(c) of Fox which provides:[10]
Clause 1(b) of sch 1 supplies a statutory test for determining the adequacy of the particulars furnished as part of the charge: that it provides the particulars ‘necessary’ to provide ‘reasonable information’ about the ‘nature of the charge’. The common law informs the content of that statutory test. 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.
[10] Fox 243.
37Ms Ruddle submitted:[11]
In circumstances where there's a single date and a single location, the nature of the charge is plainly put in this case. The nature of the charge is sufficiently disclosed. The defendant then obtains, as he is entitled to, full details of exactly how the Crown put the case against him as to manner dangerous. And it's important in my submission because it's a matter for the jury what constitutes a manner dangerous. We have put in our … prosecution opening, all of the [matters], all of the circumstances on which the Crown relies.
[11] Pre-trial transcript, 22 April 2024 (‘T’) pp 188 line 30 – 189 line 9.
38Ms Ruddle further submitted that the lack of a statutory definition of what constitutes ‘manner dangerous’ distinguishes dangerous driving charges from other offences, such as charges where the specific offensive weapon, act of sexual penetration or drug of dependence alleged is considered an essential factual particular. Ms Ruddle submitted that cl 1(b) needs to be read in the context of the whole of the structure of the scheme in the CPA and that the point of the indictment is not to provide all of the information necessary, that being the purpose of s 182 of the CPA.[12]
[12] CPA s 182 provides for the contents of a Summary of prosecution opening and notice of pre-trial admissions.
39In response, Mr Traczyk submitted that ultimately the object of the CPA and the common law is to ensure the accused knows precisely what case he or she has to meet. Mr Traczyk did not disagree with the prosecutions submission that there are cases where certain matters need to be specified, such as when required to particularise an offensive weapon. Nonetheless, he maintained the submission that in order for the accused to properly defend the charges, he should be apprised of the nature of the charges, and for that to occur the manner of his driving that is alleged to be dangerous must be particularised. Mr Traczyk submitted this is because ‘manner’ is a board expression, unlike ‘speed’, which can incorporate any number of circumstances, as is demonstrated by the contents of the prosecution opening in this case.
40At the conclusion of submissions, I indicated to the parties, without ruling, that my preliminary view remained that the charges are ineffective and insufficient to found a conviction in unamended form for failing to contain particulars that are necessary to give reasonable information as to the nature of the charge as required by cl 1(b) of sch 1 of the CPA, being the manner of the accused’s driving said to be dangerous. The prosecution indicated they did not intend to apply to amend the charges.
41On 23 April 2024, the parties appeared before me and Ms Ruddle submitted it is not open for the Court to amend an indictment under s 165 of the CPA on its own motion. Mr Traczyk submitted that if I ruled the charges were ineffective, the accused would make an application for a permanent stay of the proceeding. Ms Ruddle submitted that a permanent stay should not be ordered because the charges can proceed as they are presently worded and they disclose offences known to law.
42I raised the possibility of the Court reserving questions of law for the determination of the Court of Appeal[13] regarding whether the charges, as presently worded, are ineffective and insufficient to found a conviction in unamended form, and whether I could order, of my own motion, that the Indictment be amended. I went so far as to indicate this was my preferred course of action in all the circumstances. However, upon reflection, I have accepted Ms Ruddle’s ultimate submission that I should rule in relation to the ‘effectiveness’ and ‘sufficiency’ of the charges.
[13] See CPA ss 302, 305.
43I will seek further submissions from the parties as to what order should be made consequent upon of my ruling.
The requirements for an ‘effective’ and ‘sufficient’ charge
44The legal principles to be applied in determining the requirements for an ‘effective’ and ‘sufficient’ charge, while complex, are well settled and non-controversial. It is the application of those principles which often gives rise to difficulties in practice. Three Victorian Court of Appeal decisions are particularly helpful in providing guidance in this area of the law. They are Baiada Poultry Pty Ltd v Glenister (‘Baiada’),[14] PPP v The Queen (‘PPP’)[15] and Fox.[16]
[14] (2015) 257 IR 204, [2015] VSCA 344 (Ferguson and McLeish JJA) (‘Baiada’).
[15] (2010) 27 VR 68 (Redlich JA, Neave JA, Lasry AJA agreeing) (‘PPP’).
[16] (2022) 66 VR 223.
45In Baiada the majority discussed at some length the principles to be derived from the relevant authorities.[17] It is convenient for me to set out those principles as stated by the majority:
[17] Baiada 208 [5], 209–11 [11]–[16], 214–15 [30]–[32], 217–18 [42]–[45], 219 [48]–[49], 220 [52]–[53] (citations omitted) (emphasis mine). See also Baiada 227–43 [87]–[157] (Robson AJA dissenting) discussed below.
5The Criminal Procedure Act 2009 (‘CP Act’) requires charge-sheets to contain the particulars that are necessary to give reasonable information as to the nature of the charge. As Robson AJA has observed, the requirements of the CP Act do not supplant the common law requirements. Rather, the common law elucidates what constitutes ‘reasonable information’. That is, if the charge is to be valid, the essential factual elements of the offence, in addition to its legal nature, must be identified in the charge.
…
11Both grounds involve a question about the adequacy of the charge. In that regard, the controlling requirements are those set out in the CP Act, namely that the charge must state the offence that the accused is alleged to have committed (sch 1, cl 1(a)) and that it must contain the particulars necessary to give reasonable information as to the nature of the charge (cl 1(b)). In the case of the first requirement, it is sufficient in the case of a statutory offence such as that in issue in the present case that the offence is identified by the provision which creates it and by a description of the offence in the words of that provision, or similar words: cl 3. In relation to the second requirement, the particulars must be set out in ordinary language: cl 2. No exception, exemption, proviso, excuse or qualification needs to be specified or negatived in the charge: cl 4.
12The High Court in Kirk v Industrial Court of New South Wales [‘Kirk’] considered the relationship between the common law requirements for a valid charge and s 11 of the Criminal Procedure Act 1986 (NSW), which at the relevant time provided that the description of any offence in the words of an Act creating the offence was ‘sufficient in law’. The plurality judgment held that this requirement did not dispense with the common law rule requiring specification of the time, place and manner of the defendant’s acts or omissions.
13In Victoria, the provision corresponding to s 11 is cl 3 of sch 1 of the CP Act. Its operation is consistent with that of s 11 as described by the plurality in Kirk. However, it is plain from its terms that cl 3 addresses only the first of the two requirements under the Victorian legislation set out above. The common law is affected by the second requirement of cl 1. Clause 1(b) supplies a statutory test for determining the adequacy of the particulars furnished as part of the charge. There is no equivalent to cl 1(b) in the New South Wales legislation. Kirk says nothing as to the relationship of the common law authorities to a statutory test of the Victorian kind.
14Although the governing test is that in cl 1(b), however, it is apparent that it has much in common with the approach of the common law. In Johnson v Miller the High Court was considering a charge governed by s 181 of the Justices Act 1936 (SA), which provided that ‘It shall be sufficient in any … complaint, if the same gives the defendant a reasonably clear and intelligible statement of the offence or matter with which he is charged’. McTiernan J described this provision as embodying ‘the well-established rule of practice in criminal proceedings’ that ‘fair information and reasonable particularity as to the nature of the offence charged must be given to the defendant’.
15 This requirement has been expressed in different ways. In Johnson v Miller, Dixon J referred to ‘the necessity of specifying the time, place and manner of the defendant’s acts or omissions’. In Smith v Moody, on which the High Court relied in that case, Lord Alverstone CJ referred to ‘the old rule of criminal practice which requires that fair information and reasonable particularity as to the nature of the offence must be given’. Wills J said that ‘whatever is necessary to show that the person convicted has done something which brought him within the words of the statute’ must be specified, and spoke later of the need for sufficiency ‘with respect to the ingredients of the offence’ committed. More modern formulations have looked to ‘the nature of the offence and the manner in which it had been committed’, the ‘substance of the charge’ and ‘the essential factual ingredients’ of the offence.
16 The question that arises, bearing these authorities in mind, is whether the present charge contained the particulars necessary to give reasonable information as to the nature of the charge. The ‘nature of the charge’ involves the conduct making up the actual ingredients of the offending. …
…
30 The decision in John L Pty Ltd v Attorney-General (NSW) is in a different category. In that case the question was whether a proceeding should be struck out because the information was invalid. The information alleged that a retailer had committed an offence by publishing a false or misleading statement in contravention of consumer protection legislation. The information stated that the retailer had committed the offence:
in that it did cause to be published a statement apparently intended to promote the supply of goods, to wit motor vehicles, which statement was to its knowledge false or misleading in a material particular in that in an advertisement in the Daily Mirror on that day, it did cause to be published the following false or misleading statement:-
‘Australia Day Week-end holiday offer! 1,000 litres of free petrol! for every customer buying a car over $3,000.00 this week-end.’
31 Mason CJ, Deane and Dawson JJ held that the information was invalid because it failed to identify the material particular in which the retailer’s statement was allegedly false and misleading. Their Honours held that the information must, but did not, identify the essential ingredients of the offence. They approved what had been said in earlier authorities, that it was not necessary for the information to contain ‘all such material as a defendant may require, upon an application for particulars, for the preparation’ of the defence.
32 Baiada also relied on Bunnings Forest Products Pty Ltd v Shepherd. The appellant was convicted of an offence under the Western Australian occupational health and safety legislation. Anderson J (with whom Franklyn and Ipp JJ agreed) looked at the particulars of the charge to see how it was said that the appellant was in breach of the legislation. He noted the importance of proper particulars and referred to what had been said by the majority in John L about the need for an information to identify the essential factual ingredients of the offence. The particulars of the alleged offending were lengthy. The first two particulars summarised what work the employee had been performing and alleged that this exposed him to a hazard. Anderson J observed that these allegations were incomplete and did not reveal the actual offence charged. Relying on the common law authorities, he said that ‘this really should have been fatal to the prosecution in the absence of an amendment.’ …
…
42 [In Kirk,] [i]n the context of the New South Wales legislation, the plurality held that the statement of an offence must identify the act or omission of the employer alleged to make up a contravention of the two sections, with the measures that were not taken assuming importance. Their Honours observed:
The statement of the offence against s 15(1) did little more than follow the words of that sub-section. The first three particulars provided of the offence simply combined the words of s 15(2)(a), (c) and (f) with a reference to the ATV. Likewise the first particular relating to the s 16(1) offence repeated the words of that sub-section and merely connected them to the operation of the ATV. Of the other two particulars provided to each charge, only that which alleged a failure to ensure that the ATV was operated by persons with appropriate training came close to any measure of specificity.
43Their Honours went on to refer to the common law requirement that a defendant be told of the particular act, matter or thing that the charge is based upon. They noted that the facts set out in the charge need not be as extensive as those which a defendant might obtain on an application for particulars. In the case before them, the plurality observed that the Kirk company needed to know what steps it was alleged it should have taken if it was to rely upon a defence under s 53. They said:
The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). …
44A little later in their reasons the plurality said:
the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges. Without that particularisation, the Industrial Court would be placed in the position to which Evatt J referred in Johnson v Miller where it would act as ‘an administrative commission of inquiry’ rather than undertake a judicial function. Proceeding without further particularisation of the acts and omissions said to found the charges reflected views as to the nature and extent of the duty cast upon an employer by ss 15 and 16 and the limited operation to be given to the s 53 defences.
45It is noticeable in this passage that their Honours focussed on the need to particularise the acts and omissions upon which the charge is based. Later on in their reasons they observed that it is the act or omission of the employer which constitutes the offence and noted that the trial judge had not appreciated that no act or omission on the part of the Kirk company had been charged.
…
48It is plain that a charge under s 26(1) of the OHS Act must identify the act or omission which constitutes a contravention of the section. In our opinion, the reasoning in Kirk does not support the proposition that this requires specification of the detailed actions which it was reasonably practicable for the defendant to take. Kirk concerned a trial that had been heard and determined on the basis of charges which were particularised almost entirely in terms of the words of the statute, in circumstances where the onus of proof on the question of reasonable practicability lay on the defendant. Such particulars, as well as failing to inform the defendant of the substance of the charge, amounted in effect to little more than a statement of the statutory offence.
49References in the plurality’s judgment to ‘particular measures’ need to be read in that light. The fundamental requirement is that the act or omission that constituted the contravention be specified. Analysis of a failure to do so in terms of the need to specify a ‘measure’ or a ‘particular measure’ does not say anything as to the degree of particularity required. It serves, instead, to emphasize what is the relevant act or omission which gives rise to the offence, namely the measure or measures which the defendant has failed to take to prevent an identifiable risk eventuating. The convictions in Kirk stemmed from charges which wholly failed to identify any such measure. That sufficed to require the convictions to be set aside. …
…
52There can be little doubt that the present charges should not proceed to hearing unless full and proper particulars have been provided. But that does not mean that without complete particulars the charge-sheet is invalid. We accept that it would be insufficient if the charge-sheet merely recited the statutory language without more. In effect, this was the major defect with the charges in the Kirk case. However, that is not what has been done in this case. The charge-sheet specifies that it was the failure to ensure (so far as it was reasonably practicable):
(a) that the chicken processing line was not operating; and
(b) that there was an adequate system to prevent contact with the processing line when it was being cleaned,
that allegedly resulted in a breach of s 26(1) of the OHS Act. That is, there are two alleged omissions on the part of Baiada which have been identified. They are the things that it is alleged Baiada should have done (or the measures it ought to have taken) to comply with its obligations under the legislation.
53Rather than being of general application, or merely reciting the statutory language, these particulars relate specifically to the identified machinery (that is, the chicken processing line) which is at the heart of the incident in question here. Use of the word ‘adequate’ lends itself to standards applicable to the maintenance and operation of such machinery, which the VWA can seek to establish, and Baiada to contest. Taken in conjunction with the rest of what is stated in the charge-sheet (including that it was reasonably practicable for the matters identified to have been done) the elements of the charge have been identified. Baiada’s alleged failures have not been left at large. That is, the charge-sheet goes further than simply saying that Baiada failed to have a safe system in place to prevent the fatality. Baiada knows that there are only two matters that it must focus its attention on in defending the allegations — the operation of and the prevention of contact with the machine during cleaning.
46In Baiada, Robson AJA, whilst partially dissenting in the result, summarised the applicable legal principles as follows:[18]
[18] Baiada 242–43 [157] (citations omitted) (emphasis mine).
157The authorities examined above, establish the following relevant principles:
(a) at common law, the traditional function of the charge was to found the jurisdiction of the court to deal with the alleged offence;
(b) in more recent times, the charge is also to inform the defendant of the substance of the offence which he is called on to meet;
(c) schedule 1 of the CPA that specifies what a charge must state does not obviate the common law requirements as to a valid charge;
(d) a valid charge must specify all the elements of the offence that the defendant is alleged to have committed;
(e) the charge must specify the facts relied on to make out the legal elements of the charged offence, including the particular facts, matters or things alleged as the foundation of the charge;
(f) an invalid charge should be quashed by the Court unless validly amended;
(g) information on how the case is to be proved is not required to be included in the charge, but the facts matters or things to be proved must be included in the charge; and
(h) under s 26(1) of the OH&S Act an essential element of the charge is to allege the means by which it is alleged it was reasonably practicable for the defendant to what do it is alleged he failed to do.
47In PPP v The Queen, Redlich JA (with whom Neave JA and Lasry AJA agreed) observed: ‘The starting point is the proposition that for a trial according to law, the accused must be apprised not only of the offence with which they are charged but must have particulars of the act constituting the offence.’[19] His Honour continued:[20]
These particulars are designed to serve a number of important purposes:
(1)to enable the accused to exercise the right to object to evidence on the ground of relevance;
(2)to permit the accused to know how the charge might be answered;
(3)to provide the accused with the opportunity to test the credibility of the complainant by reference to the surrounding circumstances disclosed as a result of the particularisation of the count;
(4)to enable the trial judge to instruct the jury properly as to the law to be applied;
(5)to ensure that there is a unanimity of view by the jury as to a specific act by the accused;
(6)in the event of conviction, to enable the court to know the offence for which the defendant is to be punished;
(7)to ensure that the record discloses of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict.
[19] (2010) 27 VR 68, 80 [42] (emphasis mine).
[20] Ibid 80–81 [42] (citations omitted).
48Ms Ruddle relied on the Court of Appeal decision in Fox, which she submitted had set a ‘low bar’ for the degree of particularisation required under cl 1 of sch 1 for a ‘sufficient’ charge. In my opinion, it is important not to confuse what the Court decided regarding the validity of charge-sheets and whether they can be amended after the expiration of a limitation period, with what the Court opined regarding the statutory requirements for a sufficient charge.
49The Court in Fox held that s 9(1) of the CPA (and by analogy s 166(1)), ‘considered in isolation, has not abrogated the common law in relation to the validity of a charge’,[21] as opposed to a charge-sheet, that fails to comply with s 6(3) (and by analogy s 159(3)) and sch 1. However, by virtue of the CPA spelling out the statutory requirements for a charge, ‘a charge on a charge-sheet that fails to conform to common law requirements for a valid charge is not necessarily invalid’.[22] While the common law could assist in understanding what might satisfy the requirements of the CPA, the test is not a common law test; it is a statutory test.
[21] Fox 236 [47].
[22] Ibid 237 [48].
50The Court quoted with approval passages from paragraphs [5], [13] and [14] of Baiada which I have extracted above at [45]. The Court emphasised the following passages from Baiada:[23]
‘the common law elucidates what constitutes ‘reasonable information’.’[24]
‘Clause 1(b) supplies a statutory test for determining the adequacy of the particulars furnished as part of the charge. … Kirk says nothing as to the relationship of the common law authorities to a statutory test of the Victorian kind’.[25]
‘Although the governing test is that in cl 1(b), however, it is apparent that it has much in common with the approach of the common law.’[26]
[23] Ibid 237 [49], [50] and fn 29.
[24] Baiada 208 [5]. The expression ‘reasonable information’ appears in cl 1 of sch 1 of the CPA.
[25] Ibid 210 [13].
[26] Ibid 210 [15].
51The Court in Fox, referring to Baiada, opined:[27]
We pause to observe that the various different ways in which the common law approach had been framed, as identified in the passages above, 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, as their Honours acknowledged in the final paragraph quoted above, 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 that statutory test will be a question of fact and degree in a given case, depending on the offence(s) in question and the factual allegations. There is no verbal formula that can be substituted for the statutory test.
[27] Fox 238 [51].
52The Court continued:[28]
In our opinion, it is important not to let the traditional language of invalidity, adopted from the common law, obscure the important features of the present statutory regime. The legal consequences of a defect or irregularity in a charge that constitute a breach of cl 1(b) of sch 1 are, under the CPA, different from the legal consequence of a defect or irregularity under the common law. Even if the term invalidity is used, it is significant that such defects are susceptible to being cured by amendment, and do not result in the charge being a nullity, or in the court lacking jurisdiction to hear it. That is, the statutory scheme manifests an intention that a charge that contains a defect is not a nullity. Of course if the defect is not, or cannot be, cured by amendment then, depending on the circumstances, it may be appropriate for the magistrate to dismiss the charge.
[28] Ibid 239 [54] (emphasis mine).
53The Court observed:[29]
In our opinion, the language of s 8(4)(a) is directed at quite a different level of specificity than the language of cl 1 of sch 1. That is, the latter requires precise and specific information about the offence and the facts giving rise to the charge.
Later, the Court said their ‘understanding’ of s 8(4)(a) is ‘broader and less demanding than cl 1 of sch 1’.[30]
[29] Ibid 242 [66].
[30] Ibid 242 [68].
54Finally, in summarising its conclusions the Court, inter alia, said:[31]
(c)Clause 1(b) of sch 1 supplies a statutory test for determining the adequacy of the particulars furnished as part of the charge: that it provides the particulars ‘necessary’ to provide ‘reasonable information’ about the ‘nature of the charge’. The common law informs the content of that statutory test. 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.
(e)Where a charge-sheet or a charge fails to comply with cl 1 of sch 1, it may be able to be amended pursuant to s 8 of the CPA, subject to the limitations found in that section.
(f)… More generally, the fact that a charge may have been invalid at common law does not mean that it cannot be amended under s 8 of the CPA. However, such a charge would be ineffective unless amended.
(h)If the limitation period for the offence has expired, there are greater constraints on the power to amend, namely:
(i) The unamended charge must sufficiently disclose the nature of the offence: s 8(4)(a). This is different from, and broader than, the requirements in cl 1 of sch 1 concerning the statement of the offence and the provision of reasonable information concerning the charge. The fact that a charge does not comply with cl 1 of sch 1 does not mean that the charge necessarily fails to sufficiently disclose the nature of the offence.
(i)A magistrate has a duty to consider whether to amend a charge-sheet even if no application is made to amend, and a power to amend the charge-sheet on his or her own motion.
(fn 48) Even where no application to amend has been made, if the power to amend is available then the prosecution ought to assist the magistrate in formulating an appropriate amendment.
(j)If a charge is ineffective and an amendment cannot be, or is not, made under s 8 then the charge should be dismissed.[32]
[31] Ibid 243–44 [73] (emphasis mine).
[32] An example of dismissal of a charge on an indictment by the Court of Appeal is Linfox Resources Pty Ltd v The Queen (2010) 30 VR 507.
55Whatever might be the law after Fox regarding whether a charge-sheet ‘sufficiently discloses the nature of the offence’ for purposes of permitting its amendment after the expiry of a limitation period, I decern nothing in the Court’s judgment which ‘lowers the bar’ with regard to whether a charge satisfies the requirements of cl 1 of sch 1 of the CPA. Recognising the different roles played by the two provisions in the overall scheme of the CPA, it is quite clear the Court was careful not to ‘equate’ the ‘more demanding’ requirements of cl 1 of sch 1 with a ‘broad reading’ of s 8(4)(a).[33]
[33] See Ibid 242 [68].
56Turning to the application of these principles in practice, it is instructive to contrast the decision of Priest JA in Southgate Management Pty Ltd v Nitschke (‘Southgate’)[34] with the decision of Quigley J in Wells v Stillman (‘Wells’).[35]
[34] [2018] VSC 236.
[35] [2020] VSC 51 (Quigley J) (‘Wells’). See also DPP v Fogarty (2022) 63 VR 613 (Priest JA).
57Southgate Management Pty Ltd operated the Langham Hotel in Melbourne (‘the hotel’). Over a number of days in July 2015, the City of Melbourne Environmental Health Office received complaints that a significant number of people had fallen ill, having eaten at the hotel. An investigation was conducted, and the responsible authority filed 39 charges against Southgate in the Magistrates’ Court alleging that between 8 and 28 July 2015 Southgate had contravened three provisions of the Food Act 1984.
58The issue before the Court was whether the charges gave reasonable information as to the nature of the charge by providing sufficient particulars to comply with cl 1(b) of sch 1 of the CPA and the common law. A large number of charges were challenged for want of sufficient, or any, particulars. Some example charges will suffice for present purposes.
59Charges 1, 2 and 5 were formulated as follows:
On or about [date] you, at [the hotel], handled food, namely [egg mayonnaise – charges 1 and 5; cocktail sauce – charge 2], intended for sale in a manner that rendered, or was likely to render, the food unsafe in contravention of [s 11(1) of the Act].
60Southgate contended that essential factual elements required in order for it to distinguish between the allegations the subject of each charge were not included in the charges, specifically:
· whether the egg mayonnaise the subject of charge 1 was the same as, or distinct from, the egg mayonnaise the subject of charge 5; and
· the cocktail sauce the subject of charge 2 was insufficiently identified in circumstances where Southgate produces and stores many batches of cocktail sauce.
61The informant submitted the charges were valid because each of the essential factual elements was included in each charge, these being: the date; the location; the accused entity; the handled food (that is, egg mayonnaise or cocktail sauce);[36] that the food was handled in a manner that rendered it, or was likely to render it, unsafe; and that the egg mayonnaise or cocktail sauce was intended for sale. The informant submitted the actual manner of handling the food, and how that led to the food being unsafe (or likely to be so), are not essential elements of the offence.
[36] My emphasis.
62In elucidating the common law requirements for a valid charge, Priest JA said:[37]
The common law requires that the defendant must be provided with the substance of the charge which he or she is called upon to meet, and the court be informed of the identity of the offence with which it is required to deal. Indeed, a defendant is not able to plead to a charge unless he knows the precise case which is the basis for the preferred charge. But as the cases make plain, the necessity to be able to identify the particular occurrences or transactions which are the subject of the charge — particularly those tried on indictment — is not concerned solely with forensic prejudice to the defendant.
[37] Southgate [62] (citations omitted) (emphasis mine).
63After discussing Johnson v Miller[38] and John L,[39] Priest JA opined:[40]
As was pointed out in John L, although legislation has to some extent modified the common law, the applicable legislation did not go so far as to abrogate the essential common law requirement that a charge must condescend to identifying the essential factual ingredients of the actual offence. The facts need not be as extensive, however, as those that a defendant might obtain on an application for particulars.
[38] (1937) 59 CLR 467.
[39] (1987) 163 CLR 508.
[40] Southgate [64] (citations omitted) (emphasis mine).
64Referring to Baiada,[41] Priest JA said:[42]
… the Court made clear that the requirements of the CPA do not supplant common law requirements. Rather, the common law elucidates what constitutes ‘reasonable information’. Hence, for a charge to be valid, the essential factual elements of the offence, in addition to its legal nature, must be identified in the charge.
[41] (2015) 257 IR 204, 208 [5] (Ferguson and McLeish JJA).
[42] Southgate [67] (citations omitted) (emphasis mine).
65Priest JA quoted from the judgment of Nettle JA in DPP v Kyri,[43] where Nettle JA said:[44]
A charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context. If, therefore, the contents of the charge and the summons are sufficient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, the charge will not be invalid. … Where, … as here, the charge and summons do not allege sufficient facts to enable a reasonable defendant to determine ex facie the subsection of s 55 under which the requirement is alleged to have been uttered, the charge is defective because it fails to convey the nature of the offence alleged.
[43] (2011) 33 VR 157.
[44] Ibid 163 [16] (citations omitted).
66Priest JA concluded:[45]
In my view, as formulated, charges 1, 2 and 5 are sufficient to inform Southgate of the legal nature of the relevant offences, together with their essential factual elements. Thus, Southgate knows that the allegation is in each case that it breached s 11(1) of the Act by handling egg mayonnaise or cocktail sauce that was intended for sale in a manner that rendered it, or was likely to render it, unsafe (as that term is defined in the Act).
[45] Southgate [71] (emphasis mine).
67Turning to Wells,[46] the plaintiff was a Detective Senior Sergeant attached to the Professional Standards Command of Victoria Police. As part of an investigation conducted by the Independent Broad–based Anti–corruption Commission (IBAC), David Sordello, the Team Leader Investigations at IBAC, identified an email sent by another serving Victoria Police officer to Wells. The email attached Sordello’s employment details.
[46] Wells [13] (emphasis mine).
68As a consequence of this discovery, another investigation was commenced by IBAC in relation to alleged unlawful access of police information by Wells. On 19 March 2018, a charge was filed against Wells alleging that contrary to s 227(1) of the Victoria Police Act 2013 (‘VPA’):
The accused at Victoria on 20 March 2017, being a member of Victoria Police, without reasonable excuse, accessed police information contrary to his duty not to access the information.
69In the Magistrates’ Court, Wells sought to have the charge struck out on the basis that it was invalid. The Magistrate dismissed the application. His Honour concluded that the charge contained reasonable information of the nature of the offence and complied with the CPA. Wells applied to the Supreme Court for a declaration that the charge was invalid and an order in the nature of certiorari quashing the order made in the Magistrates’ Court dismissing his application to strike out the charge.
70Before Quigley J, the charge was argued to be invalid because it did not contain reasonable particulars required to comply with cl 1 of sch 1 of the CPA. It was submitted the charge did not contain the particulars necessary to give reasonable information as to the nature of the charge in that it did not contain, inter alia, any particulars of the ‘police information’ that was the subject of the charge.
71The issue for determination before Quigley J was the validity of the charge. Her Honour noted, the parties agreed that ‘for a criminal charge to be valid it must contain not only the legal elements of the charge but also the essential factual ingredients of the alleged misconduct’.[47]
[47] Ibid [13] (emphasis mine).
72After observing that ‘the traditional function’ of a charge at common law was to found the court’s jurisdiction to deal with the alleged offence, her Honour said:[48]
The modern articulation is commonly understood as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal in addition to providing the accused with the substance of the charge they are called upon to meet. Subject to any statutory provision that permitted a defect to be corrected, a charge ‘should be quashed as insufficient in law and invalid if it failed to inform the justice before whom it was laid of the nature of the offence and the manner in which it was committed’.
[48] Ibid [15] (citations omitted) (emphasis mine).
73Her Honour continued:[49]
The common law requirement for adequate particulars to be included in a charge did not have a single formula. The rule [has] been described variously as ‘the necessity of specifying the time, place and manner of the defendant’s acts or omissions’; ‘the old rule of criminal practice which requires that fair information and reasonable particularity as to the nature of the offence must be given’; and a requirement to specify ‘whatever is necessary to show that the person convicted has done something which brought him within the words of the statute’.
[49] Ibid [16] quoting Baiada 210 [15].
74Addressing the two limbs of cl 1 of sch 1 of the CPA, her Honour observed:[50]
As can be seen, cl 1 of sch 1 of the CPA identifies two requirements. The charge must state the offence the accused is alleged to have committed and secondly, contain the particulars in accordance with cl 2 that are necessary to give reasonable information as to the nature of the charge. The distinction between the first requirement and the second is as between the legal nature of the charge, required by cl 1(a), and the factual allegations said to bring the defendant within the offence to be set out by cl 1(b). The necessary information must be contained within the charge itself.
[50] Ibid [19] (citations omitted) (emphasis mine).
75Her Honour quoted extensively from the majority judgement in Baiada, including some of the passages I have quoted above,[51] and opined:[52]
What needs to be asked in each case is whether the charge sufficiently makes known what the accused failed to do and should have done. It can be observed that it is generally necessary to do more than merely reciting the statutory language or using words of general application because this would not generally identify the conduct making up the actual ingredients of the offending.
…
The requirement for sufficient particulars does not go so far as requiring the charge to contain all such material as a defendant may require upon application for particulars for the preparation of the defence. What is necessary are sufficient particulars to make it clear what was the act or omission alleged to constitute the offence. …
[51] Ibid [20]–[21].
[52] Ibid [22]–[23] (citations omitted) (emphasis mine).
76In Wells, the plaintiff submitted, inter alia, that the lack of particularisation of the ‘police information’, a term defined in the VPA,[53] was a defect that was directly analogous with failure to identify the ‘material particular’ required in John L.[54]
[53] See Victoria Police Act 2013 s 225.
[54] Wells [32].
77In addressing the question ‘Is the police information the subject of the charge sufficiently identified?’, Quigley J said: [55]
What is clearly apparent from the cases cited by both parties is that the extent of particularisation required for any charge reflects directly the circumstances and articulation of the offence as it is drafted in the respective legislation.
[55] Ibid [51].
78Her Honour considered, having regard to the fact a police officer would be accessing a wide range of ‘police information’ daily in the discharge of their duty, that without the specific police information being identified in the charge it was impossible to determine whether or not accessing the information was contrary to any police duty.
79After quoting passages from the judgments in Kirk,[56] DPP v Kypri,[57] Kidman v Lowndes[58] and Baiada,[59] Quigley J concluded:[60]
In my view, applying the principles which arise from the cases, to which both parties referred, I have concluded that the charge is invalid in that it insufficiently particularises a key fact or matter being that of the ‘police information’ which is the subject or foundation of the charge.
[56] Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 557–58 [26] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (‘Kirk’).
[57] Kypri [16] (Nettle J).
[58] 314 FLR 358, 373 [57] (NTCA) (Grant CJ, Kelly and Hiley JJ).
[59] Baiada 210 [13], 210–11 [15]–[16].
[60] Wells [59].
80The comparison between Southgate and Wells is instructive because in Southgate the charge was held to be sufficient because it contained particulars of the ‘food’ that were necessary to give reasonable information as to the nature of the charge; whereas, in Wells the charge was held insufficient because it did not contain particulars of the ‘police information’ necessary to give reasonable information as to the nature of the charge.
81Quigley J in Wells recognised these parallels between the extent of particularisation in the case before her compared with the those in Southgate. Her Honour observed:[61]
… In the articulation of the charge in Southgate Management and the charge before this Court, I am of the view that in answer to the ‘what’ is the subject of the charge here the ’police information’ is more correctly correlated with the term ‘food’. In Southgate Management the type of food in question was identified as ‘egg mayonnaise‘. In this case there is no type of ‘police information’ identified other than by reference back to the statutory definition. This does not give an accused the essential factual elements of the alleged offence. In Southgate Management, ‘egg mayonnaise’ was identified and the further particulars essential for the contest could provide more specification as to the actual egg mayonnaise in issue. This took the particularisation of the ‘food’ in question beyond the mere statutory language.
Here, the police information is not identified at all and without identification of the police information it makes it impossible to determine whether or not accessing the information was contrary to any police duty.
[61] Ibid [62]–[63].
Analysis
82Applying the principles derived from the authorities, I conclude that the charges are ineffective and insufficient to found convictions in unamended form in that they insufficiently particularise a key fact or matter being the ‘manner’ of the accused’s driving that is said to be ‘dangerous’, which is the subject or foundation of each charge.
83The elements of the two charges are:[62]
(1) at the time of the offence, the accused was driving a motor vehicle;
(2) the accused was driving in a manner that was dangerous to the public; and
(3) the dangerous driving caused the alleged victim to die (Charge 1) or be seriously injured (Charge 2).
[62] Crimes Act 1958 (‘CA’) ss 319(1) and 319(1A); Judicial College of Victoria, Criminal Charge Book, 7.2.6.1 ‘Charge: Dangerous Driving Causing Death or Serious Injury’ (online).
84Unlike the word ‘food’ in Southgate and the expression ‘police information’ in Wells, ‘manner’ in relation to dangerous driving is not defined in the CA. It is used in its ordinary English meaning. However, the lack of a statutory definition does not mean the charges do not need to be properly particularised. Like ‘food’ and ‘police information’, ‘manner’ of driving is a very broad concept.[63] 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. As was observed by the plurality in Kirk, the charges ‘do little more than follow the words of that sub-section’.[64] It is necessary to do more than merely recite the statutory language as this does not identify the conduct making up the actual ingredients of the offences.[65]
[63] See R v Coventry (1938) 59 CLR 633, 638–39 (Latham CJ, Rich, Dixon and McTiernan JJ), 639–40 (Starke J).
[64] Kirk 557 [25].
[65] See Baiada 208 [52].
85The charges are insufficient to bring home to a reasonable defendant the essential elements of the offences alleged. What was it about the manner of Mr Babacan’s driving which made it dangerous to the public? What is ‘the particular act, matter or thing that the charge is based upon’?[66] What should Mr Babacan have done or not done in all the circumstances of the case to have avoided committing the offences charged? In line with authority, the prosecution accepts that these matters being elucidated in the Amended Summary of Prosecution Opening is not sufficient to save the charges.
[66] See Ibid 208 [43].
86Moreover, the charges in their present form are unfair to Mr Babacan for the following reasons:[67]
(1) They do not enable him to exercise his right to object to evidence on the ground of relevance.
(2) They do not to permit him to know how the charges might be answered.
(3) They do not provide him with the opportunity to test the credibility of the prosecution witnesses by reference to the surrounding circumstances disclosed as a result of the particularisation of the charges.
(4) They do not enable the trial judge to instruct the jury properly as to the law to be applied.
(5) They are insufficient to ensure that the record discloses of what precise offence the accused has been acquitted or convicted in order for him to avail himself, if the need should arise, of a plea of autrefois acquit or autrefois convict.
[67] Taken from Redlich JA’s judgment in PPP 80–81 [42]
87Accordingly, in their present form, the charges do not provide ‘fair information and reasonable particularity as to the nature of the offence[s] charged’.[68] For that reason, they do not contain the particulars that are necessary to give reasonable information as to the nature of the charges as required by cl 1 of sch 1 of the CPA. Consequently, in the absence of amendment, the charges ought to be dismissed.
[68] Smith v Moody [1903] 1 KB 56, 60 (Lord Alverstone CJ); Johnson v Miller (1937) 59 CLR 467, 501 (McTiernan J); Baiada 210 [14]–[15]; Wells [16].
88However, before making any orders I will give the parties an opportunity to be heard regarding what, if any, applications they wish to make and the form of orders that should follow upon my ruling.
ADDENDUM
89Following the provision of this ruling to the parties, I sought brief written submissions regarding the orders I should make in this proceeding.
90I received written submissions from the parties late in the afternoon of 6 June 2024. I have had regard to those submissions. On the morning of 7 June 2024, I listed the matter for a directions hearing and received oral submissions from the parties. As a result of the written and oral submissions, I have reached a number of conclusions.
91First, I note there is no prosecution application to amend the charges before me.
92The question arises, should I amend the charges of my own motion as discussed in Fox[69] and Kypri[70] and the cases there cited?[71] Fox, Kypri and all the cases there cited dealt with magistrates’ powers in relation summary hearings.
[69] Fox 231 [22] and 244–45 [73(i)].
[70] Kypri 171 [43]–[44].
[71] See fn 9 above.
93Does this power extend to trials on indictment? CPA s 165 empowers the Court to order that an indictment be amended ‘in any manner that the court thinks necessary’. The provision is not, in terms, predicated on there being an application made by a party. Moreover, in DPP v Jarvis[72] the Court of Appeal opined:[73]
Self-evidently, the power of amendment thus conferred is very wide indeed. No distinction is drawn between amendments which go to the elements of an offence and those which go only to particulars. Subject only to the question of injustice to the accused, the power under s 165(1) would appear to extend to amendments of either kind. On that view, the judge had power under s 165(1) of the CPA to amend the indictment even on his view that the ‘specified period’ was an element of each course of conduct charge.
[72] [2018] VSCA 173
[73] Ibid [22] (Maxwell P, Niall and Weinberg JJA).
94Moreover, s 337(1) of the CPA provides:
Unless the context otherwise requires, a power or discretion conferred on a court by or under this Act may be exercised by the court on the application of a party or on its own motion.
95However, despite the broad nature of the power to amend under s 165 and the provisions of s 337 of the CPA, I am of the view that, because I am dealing with charges on an indictment, ‘the context otherwise requires’. In my opinion, authorities such as Chow,[74] Maxwell[75] and DPP v Tuteru[76] demonstrate it is not appropriate for a judge to order an amendment of an indictment in the face of opposition from the DPP.
[74] (1992) 28 NSWLR 593, 605–06 (Kirby P) (‘Chow’).
[75] (1996) 184 CLR 501, 513–14 (Dawson and McHugh JJ); 525 (Toohey J), 534 (Gaudron and Gummow JJ).
[76] (2023) 105 VR 125, 150–51 [79]–[82] (Beach, Walker and Taylor JJA).
96The authorities support the proposition that it is the function of prosecutors, not judicial officers, to determine whether a person will be prosecuted for an offence and, if so, what offence. A judicial officer is ordinarily bound by the charge the prosecutor elects to bring. The principle that close curial involvement in prosecutorial processes is undesirable extends not only to whether a particular charge is to be laid, but also whether a charge once laid is to proceed. As Kirby P explained in Chow:[77]
In criminal proceedings, judges should avoid adopting an excessively inquisitorial role. They should maintain an appropriately neutral position. They should not usurp the function of the prosecutor or, where applicable, the jury. When judicial officers assume the prosecutor’s mantle, it ill-becomes them.
[77] Chow 606.
97Accordingly, I consider it is inappropriate for me to order the amendment of the charges of my own motion.
98The next question to arise is, should I dismiss the charges? The authorities support the proposition that in summary hearings this is the appropriate order to make when the charge before the Magistrates’ Court cannot be, or is not, amended. The question arises, does such power exist in a trial on indictment in this Court?
99There is no express power in the CPA, or any other Act of which I am aware, to dismiss charges on an indictment. Nor does such a power exist at common law. However, I am aware of the decision of the Victorian Court of Appeal in Linfox Resources Pty Ltd v The Queen (‘Linfox’).[78] In that case indictment charges were defective for reasons which I do not need to elaborate. There was an application for leave to appeal against a trial judge’s refusal to dismiss the charges. In dismissing the charges the Court said:[79]
48We would have been bound to reject the defence challenge had the inference been reasonably open on the evidence that any of the applicants was an employer and was in control of the relevant activity in the mine workplace. The availability of other inferences consistent with the applicants’ having no liability under the Act would not have justified withholding the case from the jury.
49No inference of employment or control is available, however. As counsel for the applicants correctly submitted, the question of who actually employed the “RTL employees”, and who actually controlled the relevant activity in the mine workplace, is a matter of conjecture and speculation. There is nothing in the evidence relied on which enables “a deduction … reasonably [to] be drawn” that any one of the defendant companies was an employer or relevantly in control.
50The charges must be dismissed.
[78] (2010) 30 VR 507.
[79] Ibid 518 [48]–[50] (Maxwell P, Weinberg and Mandie JJA) (citations omitted).
100That was an order dismissing charges in relation to a trial on indictment. However, there appears to have been no consideration given to the source of the Court’s power to dismiss the charges.[80] In the absence of considered reasons why dismissal of the charges was the appropriate form of order to make in Linfox, I do not take the case to authorise me to dismiss the charges in the present case.
[80] Cf a court’s power to permanently stay a charge on an indictment on the basis that, on the agreed facts taken at their highest, the charge is foredoomed to fail. See eg Nelson (a pseudonym) v DPP (Cth) (2014) 44 VR 461, 462–463 [6]–[11] (Maxwell P, Redlich and Priest JJA).
101This leads me to the next question of whether or not to grant a permanent stay in relation to this matter. Mr Traczyk, on behalf of the accused, applies for a permanent stay of the charges. In written submissions dated 6 June 2024, the prosecution submits:
7The County Court does, however, have the inherent power to prevent an abuse of its processes. The appropriate mechanism or order is to stay an indictment, either temporarily or permanently.[81]
8For the reasons previously articulated, the prosecution maintain that the Court ought not stay the indictment but notes that if the Court is minded to prevent the current indictment proceeding to trial, this would be the applicable power.[82]
[81] (My emphasis).
[82] (My emphasis).
102However, 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.
103Nonetheless, 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.
104Accordingly, I order that Charges 1 and 2 on Indictment No N11781704 be permanently stayed.
105In these circumstances, the DPP requests that I certify this is an appropriate matter for determination on an interlocutory appeal pursuant to s 295(3) of the CPA.
106The definition of ‘interlocutory decision’ in s 3 of the CPA includes ‘a decision to grant or refuse to grant a permanent stay of the proceeding’.[83] I note that this is an inclusive definition.
[83] (My emphasis).
107I agree with the prosecution’s submissions that given I have granted a permanent stay of the charges, I ought to certify the matter as suitable for determination on an interlocutory appeal pursuant to s 295(3)(b) of the CPA; that is, ‘if the interlocutory decision does not concern the admissibility of evidence, that the interlocutory decision is of sufficient importance to the trial to justify it being determined on an interlocutory appeal.’
108I am so satisfied and, accordingly, I will grant a certificate under s 295(3)(b) of the CPA in respect of this interlocutory decision.
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