Legal Research
Cases
DPP v Kypri

DPP v Kypri

Case [2011] VSCA 257 31 August 2011

Appeal

Limitation Periods

Statutory Interpretation

Criminal Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2010 0123

DIRECTOR OF PUBLIC PROSECUTIONS
	Appellant
v
PETER IONNIS KYPRI	Respondent

---

JUDGES:	NETTLE, ASHLEY and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 June 2011
DATE OF JUDGMENT:	31 August 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 257
JUDGMENT APPEALED FROM:	[2010] VSC 400 (Pagone J)

---

CRIMINAL PROCEDURE – Magistrates’ Court – Appeal from trial judge’s decision rejecting appeal by Director of Public Prosecutions against magistrate’s dismissal of charge under s 49(1)(e), Road Safety Act 1986 – Charge failed to identify applicable sub-section of s 55, Road Safety Act 1986 – Whether charge deficient – Identification of relevant sub-section of s 55 an essential ingredient of offence under s 49(1)(e) – Amendment of charge – Expiration of limitation period set by s 26(4) Magistrates’ Court Act 1989 – Prosecutor did not apply to amend charge – Magistrate had power to amend charge on own motion pursuant to s 50, Magistrates’ Court Act 1989 – Whether judge erred in upholding magistrate’s decision not to amend the charge – Appeal allowed – Matter remitted to the magistrate for reconsideration of whether the charge might be amended.

---

APPEARANCES:	Counsel	Solicitors
For the Director	Mr J D McArdle QC with Dr S B McNicol	Office of Public Prosecutions
For the Respondent	Mr O P Holdenson QC with Mr W J Walsh-Buckley	Victoria Legal Aid

NETTLE JA:

This is an appeal from a judgment given in the Common Law Division rejecting an appeal by the Director of Public Prosecutions against a magistrate’s dismissal of a charge under s 49(1)(e) of the Road Safety Act 1986.

The facts

On 22 November 2006, a charge and summons was issued by the Registrar of the Heidelberg Magistrates’ Court in Magistrates’ Court Case No U03052260 (‘the charge’). It alleged that:

Charge 1 The defendant at Doncaster on 27 November 2005 having been required to furnish a sample of breath for analysis by a breath analysing instrument under s.55 of the Road Safety 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.

On 17 February 2010, the case was called on for hearing in the Magistrates’ Court at Ringwood. A police prosecutor appeared for the informant and counsel for the respondent. Counsel for the respondent submitted by way of preliminary objection that the charge was improperly drawn and duplicitous in that it failed to identify the sub-section of s 55 of the Road Safety Act under which the requirement was made for the respondent to accompany the informant. He relied on a decision of a County Court judge in R v Christine Kidd,[1] that a charge under s 49(1)(e) is bad if it fails to allege the sub-section of s 55 which is…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading DPP v Kypri

Details

AGLC: DPP v Kypri [2011] VSCA 257
Case: [2011] VSCA 257
Decision Date: 31 August 2011

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions v Kypri, the High Court of Australia was called upon to address the validity of a charge brought by the Director of Public Prosecutions under section 49(1)(e) of the Road Safety Act 1986. The charge was dismissed by the magistrate who found that the charge was deficient as it did not identify the applicable sub-section of section 55 of the Road Safety Act 1986. The Director of Public Prosecutions appealed the magistrate's decision, arguing that the charge was valid and should not have been dismissed.

The central legal issue before the court was whether the charge was deficient because it failed to identify the relevant sub-section of section 55 of the Road Safety Act 1986. The court had to determine if the identification of the relevant sub-section of section 55 was an essential ingredient of the offence under section 49(1)(e) of the Road Safety Act 1986. Additionally, the court had to consider whether the magistrate had the power to amend the charge on their own motion under section 50 of the Magistrates' Court Act 1989, and if the judge erred in upholding the magistrate's decision not to amend the charge.

The court found that the charge was indeed deficient as it failed to identify the relevant sub-section of section 55 of the Road Safety Act 1986. However, the court also found that the identification of the relevant sub-section of section 55 was not an essential ingredient of the offence under section 49(1)(e) of the Road Safety Act 1986. The court held that the magistrate had the power to amend the charge on their own motion under section 50 of the Magistrates' Court Act 1989, and that the judge had erred in upholding the magistrate's decision not to amend the charge. The appeal was allowed and the matter was remitted to the magistrate for reconsideration of whether the charge might be amended.

The court ordered that the appeal be allowed and the matter be remitted to the magistrate for reconsideration of whether the charge might be amended. The court did not make any other orders.

Orders