Director of Public Prosecutions v Kypri
[2010] VSC 400
•7 September 2010
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW & APPEALS LIST
No. 1381 of 2010
| DIRECTOR OF PUBLIC PROSECUTIONS (On behalf of Geoffrey John Webb) | Appellant |
| v | |
| PETER IONNIS KYPRI | Respondent |
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JUDGE: | PAGONE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 August 2010 | |
DATE OF JUDGMENT: | 7 September 2010 | |
CASE MAY BE CITED AS: | DPP v Kypri | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 400 | |
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JUDICIAL REVIEW – Whether charge disclosed a cause of action – Road Safety Act 1986 (Vic) ss 49(1)(e) and 55(1) – s 49(1)(e) creates separate offences – Amendment of charge.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A. Albert and Mr M. Roper | Office of Public Prosecutions |
| For the Respondent | Mr P. Holdenson QC and Mr W. Walsh-Buckley | Victoria Legal Aid |
HIS HONOUR:
The Director of Public Prosecutions (“the DPP”) appeals against a decision of Magistrate Cashmore dismissing a charge against Mr Kypri on 17 February 2010. Mr Kypri was charged pursuant to s 49(1)(e) of the Road Safety Act 1986 (Vic) (“the Act”) of having failed to furnish a sample of breath pursuant to s 55 of the Act. The learned Magistrate dismissed the charge concluding that the essential elements of the offence were missing from the charge. His Honour appeared also to have accepted the alternative submission that the charge was duplicitous.
On 6 February 2007 Mr Kypri was charged under s 49 of the Act in the following terms:
The defendant at Doncaster on 27 November 2005 having been required to furnish a sample of breath pursuant to section 55 of the Road safety [sic] Act 1986 and for that purpose a requirement was made for him to accompany a member of the police force to a police station did refuse to comply with such requirement to accompany the member of the police force prior to three hours elapsing since the driving of a motor vehicle.
The DPP maintained that the charge in these terms was legally sufficient and ought not to have been dismissed by the Magistrate. Mr Kypri contended that the charge in these terms disclosed no offence known to the law because it did not aver the essential ingredients of an offence under s 49(1)(e) of the Act. The DPP contended that the charge averred the essential ingredients of an offence under s 49(1)(e) of failing to comply with s 55(1) notwithstanding that the particular subsection relied upon was not expressly mentioned in the charge. It was that absence that Mr Kypri relied upon for the contention that the charge did not aver the essential ingredients.
Section 55 does not itself create offences. It is s 49 of the Act which creates the relevant offence by, in this case, providing that a person is guilty of an offence if he or she “refuses to comply with a requirement made under section 55(1), (2), (2AA), (2A) or (9A)”.[1] The charge plainly enough alleged that Mr Kypri had refused to comply with a requirement made pursuant to s 55 but did not specify which of the various statutory requirements under s 55 he had failed to comply with.
[1]Road Safety Act 1986 (Vic) s 49(1)(e).
It might be thought sufficient for the charge to articulate all of the elements found in s 49(1)(e) without having to specify which requirement referred to in that subsection had not been complied with. It is, after all, s 49 which creates the offence and not s 55. However, in Goodey v Clarke[2] Bongiorno J (as his Honour then was) took a different view. In that case his Honour accepted that it was s 49(1)(e) which created the relevant offence but that in doing so the section referred to separate offences linked to each of the subsections in s 55. His Honour concluded that each of the subsections referred to in s 49(1)(e) did in fact create separate offences. In that case his Honour was concerned with ss 55(1) and (2A) in relation to which his Honour said:
Notwithstanding Mr Gyorffy's submission, I have concluded that s 55(1) and (2A) do in fact create separate offences: in the first, a failure to provide a breath sample simpliciter (emphasis added) and, in the second, a failure to provide further samples in the circumstances provided by s 55(2A). Having regard to the preliminary words of s 55(2A), it would not be open, in my view, to argue that s 49(1)(f) was rendered inoperative where a sample is provided pursuant to s 55(2A). Section 55(2A) commences with reference to the person who required a sample of breath under s 55(1) or (2) being entitled to require the person who furnished the breath sample to provide further samples. That is sufficient, in my opinion, to interpret s 49(1)(f) as applying to a sample of breath and its analysis whether the sample was provided under s 55(2A) or (1). That legal analysis does not mean that the two sections create the same offence or that there is only one offence. Section 49(1)(e) makes it clear that there is more than one offence, and when one looks at the elements of those offences which would have to be proved under s 55(1) and then under s 55(2A) that conclusion is reinforced.[3]
In DPP v Greelish[4] the Court of Appeal held that separate offences were created under s 55(1) of the Act of refusing to furnish a sample of breath for analysis and of refusing to accompany a police officer to a police station or other place for that purpose. Subsequently in Clarke v Goodey[5] the Court of Appeal referred to the decision in Greelish and refused leave to appeal from the decision of Bongiorno J concluding that the decision was not attended with sufficient doubt to warrant leave. The Court of Appeal accepted in the leave application in Clarke v Goodey (consistently with its decision in Greelish) that on the face of s 49(1)(e) there appeared to have been created separate offences in respect of each of the subsections of s 55 to which it referred.[6]
[2](2002) 37 MVR 121.
[3]Ibid 122.
[4][2002] VSCA 49.
[5](Unreported, Victorian Supreme Court of Appeal, Batt and Buchanan JJA, 23 August 2002) [12]-[15] (Buchanan JA).
[6]Ibid [11] (Buchanan JA).
The conclusion that s 49(1)(e) refers to separate offences, together with the decisions in Goodey v Clarke, DPP v Greelish and Clarke v Goodey, is sufficient to dispose of the appeal in this case against the DPP. The charge averred a failure to comply with a requirement “to accompany a member” of the police force to a police station but it did not identify which of the possible requirements under s 55 had been invoked and not complied with. Each of ss 55(1) and (2) expressly contemplates a requirement that a person accompany a member of the police force but do so in different circumstances. Section 55(9A) also permits the imposition of a requirement to accompany a member of the police force but does so as a secondary requirement in the context of an earlier requirement to allow a registered medical practitioner or an approved health professional to take a sample of blood from a person required to give a sample of breath under subsections (1), (2), (2AA) or (2A) of s 55. In these circumstances the learned Magistrate cannot be said to have erred in the conclusion that the charge had failed to include essential elements. It may readily enough be accepted that the charge and summons should be read as a whole and that it is necessary to strive conscientiously to read the information in a sense that gives it the meaning the draftsman intended,[7] but a reading of the charge would not identify which of the many potential obligations to accompany a member of the police force which s 55 permitted had not been complied with. It is not a case where the relevant occurrence or foundation of the charge had been averred but that its evidence or proof had been omitted.[8]
[7]DPP Reference No 2 of 2001; Collicoat v DPP (2001) 4 VR 55, 59 [12], 68 (40); Smith v Van Maanen (1991) 14 MVR 365, 369 (Tadgell J).
[8]Compare Taylor v Environment Protection Authority [2000] NSWCCA 71 (Unreported, Meagher JA, James and Sperling JJ, 25 August 2000); Smith v Moody (1903) 1 KB 56, 63 (Channell J); Johnson v Miller (1937) 59 CLR 467, 479, 486-7, 489-90 (Latham CJ and Dixon J).
The DPP maintained that if there was an omission of an essential ingredient “that the charge should have been permitted to be amended”. Part of the problem with this submission, however, was that no application to amend appears to have been made to the learned Magistrate at the time. Indeed, no error of a failure to permit an amendment appears in the notice of appeal or in the prayer for relief.
In Broome v Chenoweth[9] Dixon J said:
Whether an information disclosing no offence can be amended has been the subject of some difference of judicial opinion. Some Victorian cases will be found discussed by Cussen J. in Knox v. Bible, and the matter is very fully examined by Clark J. in Davies v. Andrews, where cases from other jurisdictions are collected. Probably it is necessary to deal with the question as a matter of degree and not by a firmly logical distinction. An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which, upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment, if justice is not to be defeated. By contrast, at the other extreme, an information may contain nothing which can identify the charge with any offence known to the law. Such a case may not be covered by the power of amendment.[10] (footnotes omitted)
Whether or not to allow an amendment of a charge which fails to disclose an offence is not something to be determined by logical distinctions because logical distinctions might dictate that there was no offence capable of amendment. However, as his Honour made clear, whether an amendment to a charge should be allowed is to be determined as a matter of degree. In undertaking that task it is necessary to ask whether the “amendment” is clarifying something in the nature of a misstatement which is otherwise clearly indicated in the charge. There may, perhaps, be other situations where an amendment may be justified but it must usually be possible for the amendment to be said to clarify a charge otherwise found to have been identified in some meaningful, albeit defective, way.[11] In this case I do not think that the amendment which is sought could fairly be described as clarifying something which is otherwise disclosed in the formulation of the charge. An amendment to the charge by referring to subsection 55(1) would, rather, be a selection of one of a number of competing possibilities which the charge in its present form equally permits. Accordingly I would not allow the amendment even if it had been properly engaged as a ground of appeal.
[9](1946) 73 CLR 583.
[10]Ibid 601; DPP Reference No 2 of 2001; Collicoat v DPP (2001) 4 VR 55, 63 [21] (Charles JA).
[11]See also DPP v Whittleton (1991) 15 MVR 105, 107 (Smith J).
It is unnecessary for me to consider the additional basis upon which the respondent sought to defend the decision of the learned Magistrate, namely, that the charge was duplicitous. It may be accepted that a duplicitous or uncertain charge may in certain circumstances be amended[12] but the Magistrate was not in error in failing to allow an amendment if, for no other reason, that no application for amendment was made.
[12]Magistrates’ Court Act 1989 (Vic) s 50(1); Rodgers v Richards [1892] 1 QB 555, 556-7 (Hawkins J and Wills J); Hedberg v Woodhall (1913) 15 CLR 531, 535-6 (Griffith CJ); Johnson v Miller (1937) 59 CLR 467, 490 (Dixon J).
I will dismiss the appeal subject to any argument about costs.
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