Fazal v Beauchamp - [2020] VSC 546

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 1^st 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…

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 Fazal v Beauchamp

Details

AGLC: Fazal v Beauchamp [2020] VSC 546
Case: [2020] VSC 546
Decision Date: 1 September 2020

CaseChat Overview and Summary

The plaintiff, Fazal, appealed against his conviction in the County Court of Victoria, which upheld his conviction on an amended charge following a contested hearing. The original charge against the plaintiff was for refusing a request to remain at a police station for the purpose of a breath test, as per the Road Safety Act 1986 (Vic). The amended charge, which the County Court judge convicted the plaintiff on, was for refusing to undergo a breath test. The appeal was brought from the Magistrates’ Court to the County Court, and it centred on the legality and fairness of the amendment to the charge.

The primary legal issues were whether the County Court judge had the authority to amend the charge within the limitation period, given that the amendment resulted in a new offence being charged, and whether the hearing of the new charge in the County Court constituted a rehearing. Additionally, the appeal questioned whether the amendment caused an injustice to the plaintiff and if the County Court judge's refusal to hear further submissions from the plaintiff regarding the validity of the amendment after the close of evidence constituted procedural unfairness.

The court found that the County Court judge did not have the power to amend the charge within the limitation period, as it resulted in charging a new offence. However, the court determined that the hearing of the new charge in the County Court was not a rehearing but rather a continuation of the original proceedings. The amendment did not occasion an injustice to the plaintiff, and the refusal to hear further submissions did not constitute procedural unfairness. Consequently, the application was dismissed.

The court's decision was based on the principles set out in relevant cases, including DPP v Greelish and Daly v Karamoshos, among others. The statutory provisions of the Road Safety Act 1986 (Vic) and the Criminal Procedure Act 2009 (Vic) were also considered in the judgment. The court's ruling maintained the conviction on the amended charge and rejected the plaintiff's appeal.

Orders