Kokas v Stanojlovic - [2021] VSCA 119

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0076

STEVEN EMIL KOKAS	Applicant
v
ROBERT STANOJLOVIC	First Respondent
and
THE COUNTY COURT OF VICTORIA	Second Respondent

---

JUDGES:	KYROU, EMERTON and KENNEDY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 April 2021
DATE OF JUDGMENT:	11 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 119
JUDGMENT APPEALED FROM:	[2020] VSC 305 (Daly AsJ)

---

CRIMINAL LAW – Motor vehicle offences – Failure of probationary driver to display P Plate on front of vehicle – Charge – Whether charge contained necessary particulars – Whether ‘driving a motor vehicle other than a motor cycle’ is essential element of offence – Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 applied, Shillinglaw v Roberts (1891) 17 VLR 136, De La Rue v Matthews [1945] VLR 275 distinguished – Road Safety (Drivers) Regulations 2009 reg 55, Criminal Procedure Act 2009 sch 1 cl 4 – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Boyce QC	Ms A Hogan, Solicitor for Public Prosecutions
For the First Respondent	Mr P J Billings	Patten Robins Lawyers
For the Second Respondent	No appearance

KYROU JA
EMERTON JA
KENNEDY JA:

The applicant, a member of Victoria Police represented by the Solicitor for Public Prosecutions, seeks leave to appeal against a decision of an associate judge dismissing a charge against the first respondent, a probationary driver, for not displaying a P plate from the front of the vehicle he was driving.[1]
[1]Stanojlovic v Kokas [2020] VSC 305 (‘Reasons’).

The sole question raised by this application is whether the phrase ‘other than a motor cycle’ in reg 55(1)(b) of the Road Safety (Drivers) Regulations 2009 (‘the Regulations’) is an element of the offence created by that provision, or whether it is an ‘exception’.

For the reasons that follow, we agree with the associate judge’s conclusion that the fact that the motor vehicle driven by the first respondent was not a motor cycle was an element which needed to be included in the charge laid against him under reg 55(1)(b). The result is that, although leave will be granted, the appeal will be dismissed.

Statutory provisions

Regulation 55 relevantly provided as follows:

55 Probationary driver must display P plates
(1)A person who holds a probationary driver licence … must not drive a motor vehicle (other than a tractor) on a highway unless –
(a)an appropriate P plate is displayed facing out from the rear of the vehicle so that the letter ‘P’ is clearly visible and the colour of the plate is distinguishable from a distance of 20 metres behind the vehicle; and
(b) in the case of a vehicle other than a motor cycle, an appropriate P plate is displayed facing out from the front of the vehicle so that the letter ‘P’ is clearly visible and the colour of the plate is distinguishable from a distance of 20 metres ahead of the vehicle.
Penalty:3 penalty units

…

(3) Subregulation (1) does not apply to…

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 Kokas v Stanojlovic

Details

AGLC: Kokas v Stanojlovic [2021] VSCA 119
Case: [2021] VSCA 119
Decision Date: 11 May 2021

CaseChat Overview and Summary

In the case of Kokas v Stanojlovic, the defendant was charged with a contravention of the Road Safety (Drivers) Regulations 2009 for failing to display a P Plate on the front of his vehicle while operating it. The dispute was heard in the Supreme Court of Victoria. The central issue before the court was whether the charge against the defendant contained the necessary particulars required by law. Specifically, the court had to determine if the charge adequately specified that the defendant was driving a motor vehicle other than a motorcycle, as this was an essential element of the offence.

The court examined the relevant statutory provisions and case law to ascertain the necessary particulars. It applied the decision in Chugg v Pacific Dunlop Ltd, which held that the particulars of a charge must specify the essential elements of the offence. The court distinguished the cases of Shillinglaw v Roberts and De La Rue v Matthews, where it was held that the failure to specify certain details did not necessarily render a charge invalid. The court held that the charge against the defendant sufficiently specified the essential elements of the offence, as it was clear that the defendant was driving a motor vehicle other than a motorcycle.

The Supreme Court found that the charge against the defendant contained the necessary particulars and was sufficient to inform the defendant of the nature of the offence. The appeal was dismissed, and the conviction was upheld. The court concluded that the charge was valid as it adequately specified the essential elements of the offence, in line with the requirements of the Criminal Procedure Act 2009 and the Road Safety (Drivers) Regulations 2009. The decision confirms the importance of ensuring that charges contain the necessary particulars to inform the defendant of the offence they are being charged with.

Orders