Fazal v Beauchamp
[2020] VSC 546
•1 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 00993
| ROONA FAZAL | Plaintiff |
| v | |
| CHRISTOPHER BEAUCHAMP | First Defendant |
| -and- | |
| COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | Beale J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 August 2020 |
DATE OF JUDGMENT: | 1 September 2020 |
CASE MAY BE CITED AS: | Fazal v Beauchamp & Anor |
MEDIUM NEUTRAL CITATION: | [2020] VSC 546 |
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CRIMINAL LAW — Order to review — Appeal against conviction from the Magistrates’ Court to the County Court — Whether County Court judge had power within the limitation period to amend charge tried in the Magistrates’ Court when amendment had the effect of charging a new offence — Original charge was refusing request to remain at police station for purpose of a breath test — Amended charge was refusing to undergo a breath test — County Court judge convicted plaintiff on amended charge after a contested hearing — Whether hearing of new charge in the County Court was a rehearing — Whether amendment occasioned an injustice to the plaintiff — Whether County Court judge’s refusal after the close of evidence to hear further submissions from the plaintiff regarding the validity of the amendment constituted procedural unfairness — Application dismissed — DPP v Greelish (2002) 4 VR 220; [2002] VSCA 49 — Daly v Karamoshos [2020] VSC 506 — Bchinnati v Connolly [2014] VSC 623 — Stanojlovic v Kokas [2020] VSC 305 — Quick v Creanor (2015) 49 VR 479; [2015] VSCA 273 — Sutton v R (2015) 47 VR 496; [2015] VSCA 251 — Road Safety Act 1986 (Vic) ss 49, 55 — Criminal Procedure Act 2009 (Vic) ss 6, 7, 8, 254, 256.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Hardy of counsel | Justice Crew Legal Services |
| For the Defendant | Mr P Bourke of counsel | Office of Public Prosecutions |
HIS HONOUR:
BACKGROUND
The main issue raised by this proceeding is the scope of a County Court judge’s power to amend a charge when hearing an appeal from the Magistrates’ Court against conviction. A related and anterior issue is the scope of a magistrate’s power of amendment.
On 1 January 2018, the plaintiff, when driving a motor vehicle on Stud Road, Dandenong, was intercepted by police. After a positive preliminary breath test, she accompanied police to Dandenong Police Station. She left the police station before undergoing a breath test on a breath analysing instrument.
On 2 March 2018, she was charged by summons with: (1) refusing to comply with a requirement to remain at a police station for a breath test contrary to s 49(1)(e) of the Road Safety Act 1986 (‘RSA’); and (2) using an unregistered motor vehicle.[1] The particulars of the first charge were:
The Accused at Dandenong on 1st January 2018 having been required to furnish a sample of breath pursuant to section 55(1) of the Road Safety Act 1986, and for that purpose she accompanied a police officer to a place namely Dandenong Police Station, where the sample of breath was to be furnished, she was further required by a police officer to remain at that location, she did refuse to comply with such requirement to remain at that location prior to undergoing a breath test and being given the certificate under s 55(4) of the Road Safety Act 1986 or three hours elapsing since the driving of a motor vehicle whichever is sooner.
[1]Nothing more need be said about the second charge.
On 23 August 2018, at Dandenong Magistrates’ Court, after a contested hearing at which the plaintiff gave evidence, she was found guilty of both charges and sentenced. On the same day, she filed a notice of appeal against conviction and sentence in relation to Charge 1. The appeal was listed to be heard in the County Court on 13 September 2018.
On 13 September 2018, the appeal was adjourned.
On 12 November 2018, the prosecution sent an email to the plaintiff’s counsel advising that, on 20 December 2018, the prosecution would apply to amend the charge. The charge when amended would remain a charge under s 49(1)(e) of the RSA but would read as follows:
The Accused at Dandenong on 1st January 2018 having been required to furnish a sample of breath pursuant to section 55(1) of the Road Safety Act 1986 did refuse to comply with such a requirement prior to three hours elapsing since the driving of a motor vehicle.[2]
[2]Exhibit RZ3 (email from First Defendant).
It seems that the amendment application was prompted by the prosecution’s concerns as to whether the requirement to remain at the police station had been properly communicated to the plaintiff.[3]
[3]As will be seen, whether those concerns were warranted is unnecessary to decide.
On 20 December 2018, within 12 months of the alleged offence,[4] his Honour Judge Dean considered written and oral submissions by counsel for both the prosecution and the plaintiff with regard to the amendment application. At that time, the prosecution wrongly[5] submitted, and Judge Dean accepted,[6] that the amendment would not have the effect of charging a new offence. Judge Dean gave written reasons for his decision granting the amendment application. In those reasons, he noted that, if the amendment had had the effect of charging a new offence, it might be arguable that the appeal would not be a ‘rehearing’ in conformity with s 256(1) of the Criminal Procedure Act 2009 (Vic) (‘CPA’),[7] but he did not express any concluded view in that regard.
[4]See s 7 of the CPA for the 12-month limitation period for initiating a charge for a summary offence.
[5]Cf DPP v Greelish (2002) 4 VR 220; [2002] VSCA 49.
[6]Exhibit RZ7 (Judge Dean’s Reasons for Ruling), 2.
[7]Section 256(1) of the CPA, states: ‘An appeal under section 254 must be conducted as a rehearing and the appellant is not bound by the plea entered in the Magistrates’ Court.’
On 22 February 2019, Judge Dean heard the appeal. The plaintiff represented herself. As foreshadowed on 20 December 2018, the evidence led by the prosecution on appeal was effectively the same as that led before the Magistrate. The plaintiff did not give evidence. At the conclusion of the evidence, his Honour refused to hear submissions from the plaintiff that the amendment to the original charge was invalid because it substituted a new charge. His Honour said the matter had already been litigated and decided. He convicted the plaintiff on the amended charge[8] and imposed the same sentence imposed by the Magistrate.
[8]I note that the County Court extract wrongly refers to the original charge, not the amended charge.
Grounds of Review
On 8 March 2019, by originating motion, the appellant sought judicial review on the following three grounds:
(1) The Second Defendant acted ultra vires when it replaced the charge of refusing a requirement to remain at a police station with a charge of refusing a requirement to provide a sample of breath for analysis. The purported amendment of the original charge was not an amendment at all because it had the effect of commencing a proceeding for a new offence. It was not an amendment made in accordance with s 8 Criminal Procedure Act 2009. It was impermissible to commence a proceeding for a new offence in that manner, as it was not authorised under s 6(1) Criminal Procedure Act 2009.
(2) There was no evidence before the Court that the Plaintiff refused to comply with a requirement to remain at a police station for the purpose of a breath test. Consequently the Second Defendant ought to have acquitted the Plaintiff.
(3) The Second Defendant denied the Plaintiff natural justice by refusing to allow her to make submissions that the purported amendment to the charge was ultra vires and that there was insufficient evidence to find the original charge proved.
Relevant statutory provisions
The following statutory provisions are relevant:
Road Safety Act 1986 (Vic)
49Offences involving alcohol or other drugs
(1) A person is guilty of an offence if he or she—
…
(e)refuses to comply with a requirement made under section 55(1), (2), (2AA), (2A) or (9A);
…
55Breath analysis
(1)If a person undergoes a preliminary breath test when required by a police officer or an employee in the Department under section 53 to do so and—
(a)the test in the opinion of the police officer or employee in the Department in whose presence it is made indicates that the person’s breath contains alcohol; or
(b)the person, in the opinion of the police officer or employee in the Department, refuses or fails to carry out the test in the manner specified in section 53(3)—
any police officer or, if the requirement for the preliminary breath test was made by an employee in the Department, any police employee in the Department may require the person to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose may further require the person to accompany a police officer or an employee in the Department authorised in writing by the Secretary or the Head, Transport for Victoria, as the case requires, for the purposes of section 53 to a place or vehicle where the sample of breath is to be furnished and to remain there until the person has furnished the sample of breath and any further sample required to be furnished under subsection (2A) and been given the certificate referred to in subsection (4) or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner.
Criminal Procedure Act 2009 (Vic)
6Commencement of a criminal proceeding in the Magistrates’ Court
(1) A criminal proceeding is commenced—
(a)by filing a charge-sheet containing a charge with a registrar of the Magistrates’ Court; or
(b)if the accused is arrested without a warrant and is released on bail, by filing a charge-sheet containing a charge with a bail justice; or
(c)if a summons is issued under section 14, at the time the charge-sheet is signed.
…
7Time limits for filing a charge-sheet
(1)A proceeding for a summary offence must be commenced within 12 months after the date on which the offence is alleged to have been committed except where—
(a)otherwise provided by or under any other Act; or
(b)the accused gives written consent, and the DPP or a Crown Prosecutor consent, to the proceeding being commenced after the expiry of that period.
…
8Order for amendment of charge-sheet
(1)The Magistrates’ Court at any time may order that a charge-sheet be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.
(2)If a charge-sheet is amended by order under this section, the charge-sheet is to be treated as having been filed in the amended form for the purposes of the hearing and all proceedings connected with the hearing.
(3)An amendment of a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of the period, if any, within which a proceeding for the offence may be commenced.
(4)If a limitation period applies to the offence charged in the charge-sheet, the charge-sheet may be amended after the expiry of the limitation period if—
(a)the charge-sheet before the amendment sufficiently disclosed the nature of the offence; and
(b)the amendment does not amount to the commencement of a proceeding for a new offence; and
(c)the amendment will not cause injustice to the accused.
…
254Right of appeal
(1)Subject to subsection (2), a person convicted of an offence by the Magistrates’ Court in a criminal proceeding conducted in accordance with Part 3.3 may appeal to the County Court against—
(a)the conviction and sentence imposed by the court; or
(b)sentence alone.
256Determination of appeal
(1)An appeal under section 254 must be conducted as a rehearing and the appellant is not bound by the plea entered in the Magistrates’ Court.
(2)On the hearing of an appeal under section 254, the County Court or the Supreme Court, as the case requires—
…
(c)may exercise any power which the Magistrates’ Court exercised or could have exercised.
…
SUBMISSIONS
Plaintiff
The plaintiff made written and oral submissions.
The plaintiff submitted that, rather than seeking an amendment of the original charge after she appealed, the prosecution should have complied with s 6 of the CPA and filed a fresh charge sheet in the Magistrates’ Court if it wanted to prosecute her for refusing a requirement to undergo breath test.
The plaintiff submitted that neither a magistrate nor a County Court judge on appeal has the power to make an amendment to a charge sheet which has the effect of charging a ‘new and different offence’ as opposed to a ‘new offence’.[9]
[9]As observed by Croucher J in Daly v Karamoshos [2020] VSC 506 at [140], the phrase ‘a new and different offence’ was used by Nettle J in DPP v Kypri (2011) 33 VR 157; [2011] VSCA 257, [23] when discussing the scope of a magistrate’s power of amendment under s 50 of the Magistrates’ Court Act 1989 (Vic). In that case, Nettle J, discussing the power to amend a charge outside the 12-month limitation period for initiation of a summary charge, said at 165 [23]:
The rule is that an amendment which clarifies a charge is permissible and an amendment which goes further than that is not. So, an amendment may be permitted out of time when, despite the amendment, the offence charged stays the same, But an amendment will not be allowed out of time if it would result in the formulation of a new and different charge. The latter is treated as an impermissible attempt to avoid the limitation period.
The plaintiff noted that the question of whether there is a distinction to be drawn between the phrase ‘new and different offence’ and ‘new offence’ was mentioned by Croucher J in Daly v Karamoshos[10] but not determined.
[10][2020] VSC 506, [140].
In seeking to draw the distinction, the plaintiff relied heavily on what T Forrest J said in Bchinnati v Connolly:[11]
There is only one power at s 8(1) of the [CPA], which is the power to amend a charge sheet; it does not provide for two discrete powers to withdraw and then add a charge on that charge sheet (italics in original).
[11][2014] VSC 623, [30].
The plaintiff submitted that the phrase ‘new offence’ in s 8(3) has a narrow meaning. The plaintiff turned to Stanojlovic v Kokas[12] for an example of an amendment effectively, and permissibly, charging a ‘new offence’, not a ‘new and different offence’. In that case, the accused was charged with not displaying a P plate on the front of his vehicle, which was a tow-truck. The charge failed to state that the accused’s vehicle was not a motorcycle: probationary motorcyclists do not have to display a P plate on the front of their motorcycles. On review, the charge was held to be defective; it did not disclose an offence as a consequence of the omission of the words ‘not a motorcycle’. The plaintiff in the present case submitted that if, in Stanojlovic v Kokas, an amendment had been made to the charge to include the words ‘not a motorcycle’ it would have charged “a new offence” (because up to that point no offence known to the law had been charged), but it would not have charged “a new and different offence”.
[12][2020] VSC 305.
The plaintiff also submitted that, by reason of the amendment made in her case, the County Court hearing of her appeal was not a ‘rehearing’, as required by s 256(1) of the CPA because Judge Dean tried a different charge to that tried by the Magistrate.
The plaintiff submitted that injustice arose in her case from the fact that, had she been prosecuted in the Magistrates’ Court for the offence of refusing a requirement to undergo a breath test she may not have given evidence and made the admissions she did at first instance. Further, on appeal, she would have had the benefit of a retrial on that charge, not a trial on a new and different charge.
The plaintiff also submitted that Judge Dean’s refusal at the close of evidence to let her make further submissions about the validity of the amendment was a denial of procedural fairness. Not infrequently, judges are asked to revisit rulings.
The first defendant
The first defendant also made written and oral submissions.
Contrary to what the prosecution submitted to Judge Dean, the first defendant rightly conceded that the amendment had the effect of charging a new offence.
The first defendant submitted that s 8(3) plainly countenances an amendment pursuant to s 8(1) that has the effect of charging a new offence, provided the amendment is made within 12 months of the alleged offence and does not visit an injustice upon the accused.
The first defendant submitted that T Forrest J’s observations in Bchinnati v Connolly[13] were merely a description of the nature of the power in s 8, providing no support for the plaintiff’s submissions.
[13][2014] VSC 623, [30].
The first defendant submitted that any distinction between the phrases “a new and different offence” and “a new offence” is a distinction without a difference.
The first defendant submitted that, pursuant to s 256(2) of the CPA, a County Court judge on appeal enjoys the same power as a magistrate to amend a charge. To accede to the plaintiff’s submission that she was denied a rehearing would be inconsistent with that section.
The first defendant submitted that no injustice had been visited upon the plaintiff by the amendment. She was given reasonable notice of the amendment application. At the hearing of the application, she was represented by experienced counsel. The evidence that was led by the prosecution at the County Court hearing was effectively the same as that led in the Magistrates’ Court; the prosecution did not adduce any evidence of admissions made by the plaintiff when giving evidence in the Magistrates’ Court. Any prejudice occasioned to the plaintiff was not unfair prejudice and did not rise to the level of an injustice.
ANALYSIS
Scope of a magistrate’s power of amendment
It is first necessary to analyse the scope of a magistrate’s power to amend a charge. For convenience, I will set out again ss 8(1) and 8(3) of the CPA:
(1)The Magistrates’ Court at any time may order that a charge-sheet be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.
…
(3)An amendment of a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of the period, if any, within which a proceeding for the offence may be commenced (emphasis added).
In my view, based on the text of s 8(1) considered in the light of s 8(3), a magistrate is clearly empowered to make an amendment to a charge sheet which has the effect of charging ‘a new offence’. And, giving that expression its ordinary meaning, it is broad enough to cover both an amendment to a charge which does not disclose an offence known to law (as in the plaintiff’s example based on Stanojlovic v Kokas[14]) and an amendment to one that does.
[14][2020] VSC 305.
The scope of the s 8 power to amend is subject to some sensible restrictions. First, it may not be exercised if it will occasion an injustice to the accused.[15] Second, it may not be exercised to charge a new offence if 12 months has elapsed since the commission of the alleged offence.[16]
[15]CPA, s 8(1).
[16]CPA, ss 7(1) 8(3).
These restrictions, if observed, are sufficient to prevent abuse of the broad power of amendment conferred by s 8 and militate against the plaintiff’s interpretation of the meaning of the expression ‘a new offence’ in that section.
The plaintiff’s reliance on a portion of what T Forrest J said at [30] of Bchinnati v Connolly is misconceived. In that case, two charges of driving whilst suspended and one of driving whilst disqualified were, following a plea bargain, amended by the magistrate to allege three counts of unlicensed driving, even though more than 12 months had elapsed since the alleged offences. The accused pleaded guilty to the amended charges, wrongly believing they would not breach a wholly suspended sentence that he had been placed on earlier. When proceedings for breaching the suspended sentence were initiated, the accused realised his error and challenged the validity of the amendment of the charges. T Forrest J agreed that the amendments were invalid by reason of s 8(3) of the CPA. There followed a dispute between the parties as to whether the matter should be remitted to the Magistrates’ Court for consideration of the original charges. The accused submitted that the amendment agreed to by the prosecution and ordered by the Magistrate meant the original charges had been withdrawn and abandoned. That is the context in which T Forrest J, declining to direct an acquittal on the three original charges or to declare that they had been abandoned, said:
I accept that if the effect of an order for amendment is to charge a new offence the equal but opposite effect of that order must be that the charge in its original form ceases to be before the Court. In my view, however, it is not possible to disaggregate the order for amendment from its practical consequences. There is only one power at s 8(1) of the Act, which is the power to amend a charge sheet; it does not provide for two discrete powers to withdraw and then add a charge on that charge sheet. It follows that the practical consequence of setting aside the order for amendment is to set aside what the appellant has described, in loose terms, as the withdrawal or abandonment of the charges in their original forms.[17]
[17]Bchinnati v Connolly [2014] VSC 623, [30].
Scope of a judge’s power to amend a charge on appeal
The CPA provides that on appeal a County Court judge may exercise any of the powers that could have been exercised by the Magistrate.[18]
[18]CPA, s 256(2)(c).
From this it follows that Judge Dean had the power to grant the amendment application if it did not occasion injustice to the plaintiff.
The plaintiff’s interpretation of the word ‘rehearing’ in s 256(1) of the CPA is inconsistent with the power conferred on a judge by s 256(2)(c) of the CPA.
The essence of a rehearing is that the appeal judge starts afresh. In Quick v Creanor,[19] the Court of Appeal said:
Section 256(1) of the CPA provides that an appeal under s 254 must be conducted ‘as a re-hearing’. That provision, and its predecessors in the Magistrates’ Court Act 1971 and the Justices Act 1958, have long been understood as requiring the County Court to conduct a hearing de novo. In other words, the Court starts afresh. Thus, for example, amendments made to a charge by the Magistrates’ Court are of no effect before the County Court. As Hargrave J correctly stated in Candolim Pty Ltd v Garrett, the effect of ss 85 and 86 of the Magistrates’ Court Act 1971 (which are relevantly the same as ss 256(1) and (2)(a) of the CPA), is ‘... that everything which happened in the Magistrates’ Court is to be disregarded on the hearing of the County Court appeal’ (citations omitted).
[19](2015) 49 VR 479; [2015] VSCA 273, [19].
The hearing that occurred before Judge Dean comfortably fits this notion of a rehearing.
In discussion, the plaintiff’s counsel conceded that the evidence of any injustice to the plaintiff was ‘obscure’ or ‘scant’. Reasonable notice of the application to amend was given to the plaintiff and, at the hearing of the application to amend in December 2018, the plaintiff was represented by experienced counsel. At the rehearing in February 2019, the plaintiff was not taken by surprise by the prosecution case. She knew well in advance the charge she was facing and the evidence to be led in proof of that charge. The evidence led by the prosecution in the County Court was substantively the same as the evidence led by the prosecution below. The plaintiff had the opportunity to test and assess the strength of that evidence in both the Magistrate’s Court and the County Court. On the appeal, no evidence was adduced of any admission made by the plaintiff when giving evidence in the Magistrates’ Court.
In these circumstances, it is difficult to see how the amendment occasioned any injustice to the plaintiff.
True it is that she did not have the opportunity of contesting the same charge twice, but since the evidence adduced by the prosecution was effectively the same at both hearings it cannot be said that she suffered any unfair prejudice.
As the Court of Appeal said in Sutton v R:[20]
It is not productive of injustice that the applicant was more likely to be convicted of the charges as a result of the amendments. That will frequently and entirely properly be the purpose of amendments sought….
[20](2015) 47 VR 496; [2015] VSCA 251, [95].
Given the view I have taken regarding Judge Dean’s power to amend Charge 1, it is not necessary to consider Grounds 2 and 3. Both are predicated on the mistaken assumption that Judge Dean’s amendment of Charge 1 was invalid.
Accordingly, I dismiss the plaintiff’s application and award costs to the first defendant.[21]
[21]The plaintiff’s counsel indicated on 1 September 2020 that she did not wish to be heard on the question of costs which were sought by the first defendant.
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