Gigante v Hickson - [2001] VSCA 4

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 218 of 2000

SANTE GIGANTE
	Appellant
v.
KEVIN DAVID HICKSON
	Respondent

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A CASE STATED

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JUDGES:	TADGELL, CALLAWAY and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 December 2000
DATE OF JUDGMENT:	23 February 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 4

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CRIMINAL LAW – Question of law reserved – Inutile to answer.

CRIMINAL LAW – Practice – Summary offence – Charge – Place misstated – Variance if inessential – Failing breath test – Place inessential – Amendment allowable beyond 12 months after offending – Quaere whether needed – Observations in Kerr v. Hannon [1992] 1 V.R. 43 and Goodman v. Stafford (1992) 15 M.V.R. 145 disapproved - Magistrates’ Court Act 1989, ss.26(4), 50(1); Road Safety Act 1986, s.49(1)(f).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S. Gillespie-Jones	John A. Clements
For the Respondent	Mr C.J. Ryan	Solicitor for Public Prosecutions

TADGELL, J.A.:

Having had the advantage of reading in draft the reasons prepared by Batt, J.A., I agree with all that his Honour has said.

CALLAWAY, J.A.:

I, too, agree in the judgment of Batt, J.A.

BATT, J.A.:

The court has before it a question of law reserved by a judge of the County Court pursuant to ss.446(1) of the Crimes Act 1958 and the case stated by him pursuant to s.447(1). The material facts set forth in the case are given in the following paragraphs.

At approximately 7.15 p.m. on Friday 31 May 1996 Sante Gigante, whom I shall call “the appellant”, was intercepted by Sergeant Kevin David Hickson of the Victoria Police, whom I shall call “the respondent”, in a service lane of the Western Highway near its intersection with Station Road at Deer Park. The respondent administered a preliminary breath test to the appellant and, being of opinion as a result that the appellant’s blood contained alcohol, required the appellant to accompany him to a breath testing vehicle situated in Geelong Road, Yarraville. There the respondent required the appellant to undergo a breath test pursuant to s.55 of the Road Safety Act 1986. At 7.55 p.m. the appellant furnished a sample of breath, which was analysed by a breath testing instrument and gave a reading of .110%.

The appellant was charged with an offence under s.49(1)(f) of the Road Safety Act and that charge was heard by the Magistrates’ Court at Williamstown on 26 August 1997. As typed, the charge read:

“The defendant at Deer Park on 31/05/96 did within 3 hours after driving a motor vehicle furnish a sample of breath for analysis by a breath-analysing instrument pursuant to s.55(1) of the Road Safety Act 1986, and
(1)The result of the analysis recorded or shown by the breath-analysing instrument indicated that more than the prescribed concentration of alcohol was present in his/her blood; and
(2)The concentration of alcohol indicated by the analysis to be present in his/her blood was not due solely to the consumption of alcohol after being in charge of the…

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 Gigante v Hickson

Details

AGLC: Gigante v Hickson [2001] VSCA 4
Case: [2001] VSCA 4
Decision Date: 23 February 2001

CaseChat Overview and Summary

The case of Gigante v Hickson involved a dispute under criminal law concerning the variance in the place stated in a charge of a summary offence and whether such variance is inessential. The matter was heard in the Supreme Court of Victoria. The defendant, Gigante, was charged with failing to provide a breath sample after being directed by a police officer. The issue in the charge was the misstated location where the offence occurred, raising questions about whether this variance was inessential and whether an amendment could be allowed beyond the 12-month period after the offence.

The court needed to determine whether the misstated place in the charge constituted an inessential variance, and if so, whether the amendment was permissible despite exceeding the statutory time limit. The court also examined if there was a necessity for the amendment to be allowed under the circumstances. This involved a review of previous cases such as Kerr v Hannon and Goodman v Stafford, which suggested that such variances could be disregarded if they did not affect the defendant's rights.

The court found that the misstated location did not prejudice the defendant's case and thus constituted an inessential variance. It held that an amendment could be made beyond the statutory 12-month period if it was deemed necessary and did not prejudice the defendant. The observations in Kerr v Hannon and Goodman v Stafford were disapproved as they did not align with the statutory provisions outlined in the Magistrates’ Court Act 1989 and the Road Safety Act 1986. The court concluded that the amendment was allowable and did not require a new charge to be laid. The final orders were to allow the amendment of the charge to correct the misstated location and to proceed with the case.

Orders