Matthew Fox v Director of Public Prosecutions

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0062

MATTHEW FOX	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

S EAPCI 2021 0064

BRANDON ASHLEY BANT	Applicant
v
SENIOR CONSTABLE DIANE GRANT	First Respondent
and
MAGISTRATES’ COURT OF VICTORIA	Second Respondent

S EAPCI 2021 0081

ALLAN JOSEPH NUNN	Applicant
v
SENIOR CONSTABLE PETER PEZZIMENTI	First Respondent
and
MAGISTRATES’ COURT OF VICTORIA	Second Respondent

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JUDGES:	KENNEDY, WALKER and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22, 24 and 25 February 2022
DATE OF JUDGMENT:	29 March 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 38
JUDGMENT APPEALED FROM:	[2021] VSC 226 (Beale J) [2021] VSC 276 (Richards J) [2021] VSC 313 (Beale J)

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STATUTORY CONSTRUCTION – Criminal Procedure Act 2009 (‘CPA’) – Summary offences – CPA pt 2.2 and sch 1 – Charges and charge-sheets – Validity of charges and charge-sheets which fail to comply with CPA sch 1 – Meaning of ‘particulars’ in cl 1(b) of sch 1 – Power of amendment under CPA s 8, including after expiry of limitation period – Interplay between CPA, predecessor statute and common law – Baiada Poultry Pty Ltd v Victorian WorkCover Authority [2015] VSCA 344, applied – DPP v Kypri (2011) 33 VR 157, discussed – Glenister v Magistrates’ Court of Victoria [2014] VSC 265, not followed.

CRIMINAL LAW – Road Safety Road Rules 2017 r 20(1) – Speeding – Charge misdescribed location of alleged offence – Whether specific location necessary under cl 1(b) of sch 1 – Whether charge could be amended, including after expiry of limitation period – Whether charge sufficiently described nature of offence – Whether amendment had effect of charging new offence – CPA ss 6, 8, 9, sch 1 – Leave to appeal granted – Appeals dismissed.

CRIMINAL LAW – Road Safety Act 1986 (‘RSA’) – Drug driving – Blood sample taken within three hours confirmed presence of methylamphetamine – Place of offence described in charges by reference to locality – Charges did not specify drug detected, source of police officer’s power to require oral fluid sample, or times of driving or of taking of blood sample – Whether essential elements of offences – Whether charges invalid – Whether charge duplicitous – Failure to specify drug was failure to give reasonable information as to nature of charges, as required by cl 1(b) of sch 1 – Whether charges could be amended under CPA s 8 – RSA ss 49 (1)(bb), 49(1)(i), 55E – DPP Reference No 2 of 2001 (2001) 4 VR 55, applied – Leave to appeal granted – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant in S EAPCI 2021 0062 (Fox)	Mr P Billings with Mr W Walsh-Buckley	Pica Criminal Lawyers
For the Applicant in S EAPCI 2021 0064 (Bant)	Mr P Billings with Mr W Walsh-Buckley	Dwyer Legal Warrnambool Pty Ltd
For the Applicant in S EAPCI 2021 0081 (Nunn)	Mr P Billings with Mr W Walsh-Buckley	Ondrik Larsen Lawyers
For the Respondent in S EAPCI 2021 0062 (Fox)	Ms E Ruddle QC with Mr L McAuliffe	Ms A Hogan, Solicitor for Public Prosecutions
For the First Respondents in S EAPCI 2021 0064 (Bant) and S EAPCI 2021 0081 (Nunn)	Ms E Ruddle QC with Ms R Sharp	Ms A Hogan, Solicitor for Public Prosecutions
For the Second Respondents in S EAPCI 2021 0064 (Bant) and S EAPCI 2021 0081 (Nunn)	No appearance

TABLE OF CONTENTS

INTRODUCTION............................................................................................................................... 1

THE LEGISLATIVE REGIME............................................................................................................ 1

Validity of a charge-sheet that fails to comply with cl 1(b) of sch 1............................................ 5

The power to amend a charge-sheet................................................................................................ 6

Validity of a charge that fails to comply with cl 1(b) of sch 1..................................................... 16

The relationship between s 8(4) and cl 1 of sch 1......................................................................... 20

Summary of approach...................................................................................................................... 26

BANT V GRANT............................................................................................................................... 28

Relevant legislative provisions....................................................................................................... 30

Judge’s Reasons................................................................................................................................. 30

Proposed grounds of appeal........................................................................................................... 34

Proposed ground 3............................................................................................................................ 35

Proposed grounds 1 and 2............................................................................................................... 37

Analysis.............................................................................................................................................. 38

Proposed ground 4............................................................................................................................ 39

Conclusion in Bant............................................................................................................................ 39

FOX V DIRECTOR OF PUBLIC PROSECUTIONS...................................................................... 40

Factual and procedural background.............................................................................................. 40

The trial judge’s reasons................................................................................................................... 41

Proposed grounds of appeal........................................................................................................... 42

Arguments on the application for leave to appeal....................................................................... 43

Consideration of the challenge to the validity of the charge...................................................... 44

Consideration of whether the charge could be amended........................................................... 45

Conclusion in Fox.............................................................................................................................. 47

NUNN V PEZZIMENTI................................................................................................................... 48

Relevant legislative provisions....................................................................................................... 50

Judge’s Reasons................................................................................................................................. 52

Proposed grounds of appeal........................................................................................................... 54

Submissions....................................................................................................................................... 55

Analysis.............................................................................................................................................. 60

Conclusion in Nunn.......................................................................................................................... 64

CONCLUSION.................................................................................................................................. 64

KENNEDY JA

WALKER JA

WHELAN JA:

Introduction

There are three matters before this Court that raise similar, but not identical, issues concerning the adequacy of a charge for a summary offence laid under the Criminal Procedure Act 2009 (‘CPA’). The matters were heard separately, but the parties agreed that the Court could treat the matters as if they had been heard together.

In each matter the allegation of the accused was that the charge-sheet filed to commence the proceeding, and/or the charge contained in the charge-sheet, was invalid (and a nullity) because it failed to provide the necessary particulars of the offence, as required by cl 1(b) of sch 1 of the CPA. Further, each applicant submitted, the charge-sheet could not be amended under s 8 of the CPA to cure the defect, because the limitation period for each charge had expired and any amendment of the charge-sheet would not comply with ss 8(3), 8(4)(a) and/or 8(4)(b).

These three cases raised complex issues of statutory construction. For that reason we would grant leave to appeal in each matter. However, we would dismiss the appeal in each matter. Our reasons are set out in detail below. However, before we turn to the detail of each of the particular cases, it is necessary to address various arguments concerning the relevant provisions of the CPA.

The legislative regime

While the focus of the applicants’ grounds was on cl 1(b) of sch 1 and s 8 of the CPA, we accept the respondents’ submission that it is necessary to construe those provisions by reference to the context in which they are found; that is, by reference to various other provisions within the CPA, particularly Part 2.2. It is thus appropriate to explain the operation of the relevant provisions, and deal with the parties’ general submissions about their construction and operation, before turning to their application to the present cases. In this exercise we were particularly assisted by the oral and written submissions of Ms Ruddle QC, with Ms Sharp and Mr McAuliffe, counsel for the respondents in the three matters.

Part 2.2 of the CPA is headed ‘Charge-sheet and listing of matter’. It commences with s 6, which sets out the way in which a proceeding is commenced in the Magistrates’ Court. That section relevantly provides as follows:
(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.
…
(3)       A charge-sheet must—
(a)       be in writing; and
(b)       be signed by the informant personally; and
(c) comply with Schedule 1.
It is apparent from s 6(1) (and from other provisions of the CPA) that the terms ‘charge-sheet’ and ‘charge’ are used distinctly: they refer to different concepts. The latter is the allegation of the particular offence that the accused is said to have committed; the former is the formal document that sets out the charge and commences the criminal proceeding. A charge-sheet may contain more than one charge.

It is the step of filing a charge-sheet that vests the Magistrates’ Court with jurisdiction to hear the proceeding. Thus if a charge-sheet were to be invalid, a possible consequence would be that the Magistrates’ Court would lack jurisdiction to hear and determine the matter. In contrast, if a charge were to be invalid (but not the charge-sheet), then the charge would not sustain a conviction, but it would not follow that the Court would lack jurisdiction.

Section 6(3) imposes certain requirements of form and also, in s 6(3)(c), requires a charge-sheet to ‘comply with Schedule 1’. Schedule 1 is headed ‘Charges on a charge-sheet or indictment’. It sets out various requirements concerning both charges[1] and charge-sheets.[2] Of critical relevance to the current proceeding is cl 1 of sch 1, which provides as follows:
[1]See, eg, CPA, sch 1, cls 1–4.
[2]See, eg, CPA, sch 1, cls 5–6.

1 Statement of offence
A charge must—
(a) state the offence that the accused is alleged to have committed; and
(b) contain the particulars, in accordance with clause 2, that are necessary to give reasonable information as to the nature of the charge.

We note that, in addition to the requirement that the charge must contain the particulars necessary to give reasonable information as to the nature of the charge, the CPA contains other provisions directed to ensuring that the accused is properly informed about the charge and the nature of the prosecution case. In particular, the respondents pointed to the following provisions:

(a) s 24, which provides for a preliminary brief to be served on an accused within 21 days after a charge-sheet is filed, the contents of which are set out in s 37, and which include a detailed statement by the informant;

(b) s 32(2), which provides that an accused is entitled to ‘reasonable particulars of the charge’;

(c) s 39, which provides for service of a full brief if requested by the accused, the contents of which are set out in s 41, including any information, document or thing that the prosecution intends to rely upon at the hearing of the charge and any other relevant information, document or thing in the possession of the prosecution;

(d) s 42, which provides for a continuing obligation of disclosure;

(e) s 43, which enables an accused to request certain further information; and

(f) div 4 of pt 3.2 generally, which provides for a system of pre-contest hearings, enabling the parties to identify the issues properly in dispute.

It is relevant to observe at this point that the common law has always drawn a distinction between those matters that must be contained within a charge (often described as the essential elements or ingredients of the offence,[3] but also sometimes referred to as particulars[4]), and those matters that need not be contained within a charge, but must nonetheless be provided to the accused prior to any final hearing (which are commonly also referred to as particulars).[5]
[3]See, eg, John L Pty Ltd v AG (NSW) (1987) 163 CLR 508, 519–20 (Mason CJ, Deane and Dawson JJ); [1987] HCA 42 (‘John L’); Alwer v McLean (2000) 32 MVR 125, 128 [17] (Smith J); [2000] VSC 396; DPP Reference No 2 (2001) 4 VR 55, 61–2 [18]–[19], 63-4 [23] (Charles JA); [2001] VSCA 114.
[4]See, eg, De Romanis v Sibraa [1977] 2 NSWLR 264, 291 (Mahoney JA); Wells v Stillman [2020] VSC 51, [16] (Quigley J) (‘Wells’).
[5]See, eg, DPP Reference No 2 (2001) 4 VR 55, 61–2 [19] (Charles JA); [2001] VSCA 114; Gigante v Hickson (2001) 3 VR 296, 300 [15] (Batt JA); [2001] VSCA 4 (‘Gigante’); Southgate Management Pty Ltd v Nitschke [2018] VSC 236, [78] (Priest JA) (‘Southgate’); Baiada Poultry Pty Ltd v Victorian WorkCover Authority [2015] VSCA 344, [52]–[54] (Ferguson and McLeish JJA) (‘Baiada’); Wells [2020] VSC 51, [23] (Quigley J); DPP v Fogarty (2021) 63 VR 613, 624–5 [28] (Priest JA); [2021] VSC 392. See also S Kidman & Co Ltd v Lowndes (2016) 314 FLR 358, 380–1 [97] (Grant CJ, Kelly and Hiley JJ); [2016] NTCA 5.

This overlap in language remains in the CPA (in cl 1(b) of sch 1 and in s 32). But it ought not be assumed that anything that can be described as the ‘particulars of the charge’ is required to be included in the charge. That is not what cl 1(b) provides. It is only those particulars ‘necessary to give reasonable information as to the nature of the charge’ that must be included in the charge. Other particulars may be obtained under s 32 (or provided in the preliminary brief or the full brief). In our opinion, the distinction drawn at common law, between the particulars (or matters) necessary to be included in a charge, and the particulars that are not so necessary, continues to be reflected in the CPA.

Validity of a charge-sheet that fails to comply with cl 1(b) of sch 1

Notwithstanding the requirement in s 6(3)(c) that a charge-sheet must comply with sch 1, s 9(1) of the CPA provides that ‘a charge-sheet is not invalid by reason only of a failure to comply with Schedule 1’.[6]
[6]Section 9(2) provides as follows (emphasis added):

In argument before us the parties agreed, and we accept, that s 9(1) must protect some charge-sheets from invalidity, but that it did not protect all charge-sheets from invalidity. That is, s 9(1) must be given some work to do, but the use of the term ‘only’ indicates that a charge-sheet may be invalid for some reason other than a failure to comply with sch 1. The respondents gave as an example a charge-sheet that failed to comply with s 7(1) of the CPA — that is, a charge-sheet that was filed outside the 12 month limitation period for which that sub-section provides. But, the respondents submitted, s 9(1) is directed to preserving the jurisdiction of the court and should be interpreted broadly. Thus, a mere failure to comply with a provision of sch 1 would not render the charge-sheet invalid.

It is not necessary or appropriate for us to express a concluded view on all of the circumstances that might render a charge-sheet invalid. It is sufficient, in the present context, for us to conclude that where a charge fails to comply with cl 1(b) of sch 1 (which in terms is directed to the content of a charge, not a charge-sheet), that, in and of itself, will not render the charge-sheet containing the charge invalid. That is so even though such a charge-sheet fails to comply with s 6(3) of the CPA. That is because whether a failure to comply with a statutory requirement of that kind leads to invalidity is a question of statutory construction;[7] and in the present case that question is answered by s 9(1).
[7]Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 388–9 [91] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28 (‘Project Blue Sky’).

Further, in our opinion, when consideration is given to each of the provisions discussed above, and contrary to the submissions put by the applicants, there can be no suggestion that a charge-sheet containing a charge that fails to comply with cl 1(b) of sch 1 is a nullity. Section 9(1) evidences a clear legislative intention that a charge-sheet is not rendered invalid by such a failure. In light of that, the charge-sheet containing the defective charge cannot be a nullity.

That conclusion is further supported by the presence in Part 2.2 of s 8, the power to amend a charge-sheet, to which we now turn.

The power to amend a charge-sheet

Section 8 of the CPA provides as follows:

8 Order 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.

We note that many of the authorities to which our attention was drawn in considering the proper construction of s 8 concerned the predecessor to the CPA, the Magistrates’ Court Act 1989 (‘MCA’), and in particular the amendment power in s 50 of that Act.[8] The applicants submitted that at least some of those authorities ought to be disregarded because the terms of s 8 of the CPA were different from the terms of s 50 of the MCA, and the CPA provided for a narrower or more limited power of amendment than the MCA. Their submission was that the CPA had worked a significant departure from the pre-existing approach to the power of amendment.
[8]Section 50 of the MCA relevantly provided as follows:
50 Power to amend where there is a defect or error
(1) On the hearing of a proceeding the Court must not allow an objection to a charge, summons or warrant on account of any defect or error in it in substance or in form or for any variance between it and the evidence presented in the proceeding but the Court may amend the charge, summons or warrant to correct the defect or error.

In contrast, the respondents contended that s 8 of the CPA had broadened the power of amendment, so that it was no longer necessary to identify a defect or error in the charge in order to engage the power of amendment (as it had been under s 50) of the MCA. Thus, for example, a new charge could be added to a charge-sheet under s 8(1) (subject to the limitations imposed by ss 8(3) and 8(4)), even though that would not have been permitted under s 50 of the MCA.

It is trite to observe that the terms of s 8 of the CPA are different from the terms of s 50 of the MCA. However, we do not accept the applicants’ submission that s 8 confers a narrower, more restricted power of amendment than s 50 of the MCA. To the contrary, we accept the respondents’ submission that the power conferred by s 8(1) is intended to be broader than the power conferred by s 50, in that it does not require a defect or error in the charge-sheet in order to enliven the power to amend. Having said that, we do not think that s 8 effected any other significant change to the pre-existing approach to amendments. In particular, we consider that ss 8(3) and 8(4) of the CPA are intended to capture, in substance, the kinds of limitations imposed by courts on the s 50 amendment power. That is, we consider that ss 8(3) and 8(4) have been informed by the restrictions applicable to the amendment power in s 50 of the MCA that were not expressly reflected in the terms of that section.

As is apparent, s 8(1) of the CPA permits the Magistrates’ Court to, ‘at any time’, amend a charge-sheet ‘in any manner that the court thinks necessary’, unless the amendment would cause injustice to the accused. An amended charge-sheet is then to be treated as if it had been filed in its amended form for the purposes of the proceeding: s 8(2). This is a broad power of amendment, as this Court recognised in Fazal v Beauchamp:

Starting with the text, it is clear that s 8(1) confers a broad power of amendment. An amendment to a charge-sheet may be made ‘at any time’ and ‘in any manner’ thought necessary. Further, the amendment permitted by s 8 is to the charge-sheet and not to a charge. Self-evidently, an amendment to a charge-sheet may involve amendment to an existing charge, but would also allow the addition of a charge without any alteration to existing charges contained on the charge-sheet. The ability to add an additional charge is made explicit by the terms of s 8(3) which is predicated on an amendment that has the effect of charging a new offence. The CPA allows for multiple charges on the same charge-sheet.
As the judge noted in his reasons, the amendment power is subject to some specific limitations. First, an amendment cannot be allowed if it cannot be made without injustice to the accused. Second, an amendment to the charge-sheet cannot be made if it has the effect of charging a new offence after the expiry of any limitation period.
Beyond [the] express limitations, there is no reason to give the broad language a confined or narrow operation. Indeed, it would be wrong to do so, as was explained by Gaudron J in Knight v FP Special Assets Ltd, as follows:
It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant.[9]

[9][2021] VSCA 103, [18]–[20] (McLeish, Niall and Kennedy JJA) (‘Fazal’) (citations omitted).

Further, s 8(1) permits the court to amend a charge-sheet either on application or on its own motion.[10]
[10]CPA, s 337(1); and see the authorities discussed in DPP v Kypri (2011) 33 VR 157, 171 [43]–[44] (Nettle JA); [2011] VSCA 257 (‘Kypri’), concerning the duty of a court to amend an information or a charge, even in the absence of an application. Although these authorities did not concern the CPA (but rather, concerned its predecessor and other similar legislation), in our opinion the CPA did not intend to alter the pre-existing approach to this issue. So much is confirmed by s 337(1).

The power to amend conferred by s 8(1) can be used to cure a defect in a charge-sheet — but the power is not confined to charge-sheets containing a defect. It is plain that the power to amend a charge-sheet must permit the amendment of a charge contained on the charge-sheet. Further, in our opinion, s 8(1) permits an amendment to a charge on a charge-sheet to cure a defect that might at common law have rendered the charge invalid (for example, because the charge did not disclose an offence known to law). Indeed, in circumstances where the limitation period has not expired, a charge-sheet may be amended to add a new charge.[11]
[11]Fazal [2021] VSCA 103, [18] (McLeish, Niall and Kennedy JJA).

However, where the limitation period for the offence has expired, the amendment power is constrained. That is the effect of ss 8(3) and 8(4). Pursuant to those sections, if the limitation period has expired then the following constraints apply to the power to amend.

First, both ss 8(3) and 8(4)(b) preclude an amendment to a charge-sheet that would have the effect of charging the accused with a new offence, because such an amendment would defeat the limitation period.[12] So, for example, a charge-sheet could not be amended to add a new charge; nor could an existing charge on a charge-sheet be amended in such a way as to charge the accused with a new offence.
[12]We note that ss 8(3) and 8(4)(b) seem to overlap considerably, and it is unclear to us what distinct work they do. Each sub-section in effect prevents amendment of the charge where a limitation period has expired if the amendment would involve the commencement of a proceeding for a new offence, although s 8(3) uses somewhat different language from s 8(4)(b). The respondents submitted that s 8(4)(b) gives practical effect to s 8(3). That may be correct. In any event, both sub-sections are directed at the same underlying policy concern: to prevent the prosecution from avoiding the operation of the limitation period applicable to the offence with which the accused was originally charged (or was intended to be charged).

Whether a charge-sheet, as amended, amounts to the commencement of a proceeding for a new charge will depend on the particular reason for the amendment, the nature of the amendment, and the nature of the offence. There is no ‘bright line’ distinction or formula to be applied in that regard. What is required is a comparison of the offence alleged to have been committed in the unamended charge, and the offence alleged to have been committed in the amended charge.

Secondly, s 8(4)(a) permits an amendment to a charge-sheet if (and, we infer, only if) the unamended charge-sheet ‘sufficiently disclosed the nature of the offence’. This is directed to ensuring procedural fairness to the accused. (We will say more later about what is meant by ‘sufficiently disclosed the nature of the offence’.)

Thirdly, s 8(4)(c) permits an amendment to a charge-sheet if (and, we infer, only if) the amendment will not cause injustice to the accused. That is, in our opinion, a ‘catch-all’ provision to ensure that the court’s processes are not used to perpetuate injustice.

However, so long as the conditions in ss 8(3) and 8(4) are met, then in our opinion a charge-sheet may be amended to cure a defect in a charge, even where the defect was such as to otherwise cause the charge to be invalid at common law.

Section 8 is a powerful indicator that a charge-sheet that contains a defect — even one that could, at common law, have led to invalidity of a charge — is not a nullity. That is because the charge-sheet (including the charge) may be amended so as to cure the defect, so long as to do so would not work injustice to the accused (and, if the limitation period has expired, so long as the amendment complies with ss 8(3) and 8(4)). If a charge-sheet is amended, it is to be treated as if it had been filed in the amended form for the purposes of the proceeding: s 8(2). But if a charge-sheet containing a defect were a nullity, it would not be capable of being amended — there would be nothing to amend.

Of course, if the limitation period for the offence has expired, then the power of amendment is circumscribed by the matters set out in ss 8(3) and 8(4). But those matters do not detract from the proposition that, subject to those limitations, a charge-sheet containing an invalid charge can be amended so as to make the charge valid.

That understanding is confirmed by the decision of Nettle JA[13] in Kypri, with whom Tate and Ashley JJA relevantly agreed. That case concerned a charge that had failed to identify a relevant sub-section of s 55 of the Road Safety Act 1986, which was an essential ingredient of the offence under s 49(1)(e) of that Act. The magistrate declined to amend the charge under s 50 of the MCA. Of the power to amend, Nettle JA said this:

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.
A charge which lacks an essential element of the alleged offence is defective and, at common law, may be described as a nullity. If, however, the true nature of the offence is apparent from the face of the charge, and the defendant has not been misled or otherwise prejudiced by the omission, the charge may be amended under s 50 (even out of time) to include the missing element; on the basis that such an amendment does no more than clarify what is already apparent from the face of the charge.[14]

[13]As his Honour then was.

[14]Kypri (2011) 33 VR 157, 165 [23]–[24] (emphasis added) (citations omitted); [2011] VSCA 257.

Similarly, in expressing her agreement with Nettle JA, Tate JA said this:

As [Nettle JA] makes clear, in a statutory regime that contains a power of amendment, a charge which is defective because it fails to refer to the relevant statutory provision alleged to be contravened ought not to be treated as a nullity, whatever its status might be at common law. The relevant question to ask is whether an amendment can cure the irregularity by clarifying the charge that had been laid, without injustice to the defendant.[15]

[15]Ibid 175 [68].

As explained above, we consider that decisions concerning s 50 of the MCA may be of assistance in understanding the scope of the amendment power in s 8 of the CPA. In particular, in our opinion s 8(4) of the CPA reflects various judicial decisions concerning the limits of the amendment power in s 50 of the MCA, including Nettle JA’s judgement in Kypri. Thus, one can see s 8(4)(b) of the CPA reflected in the first paragraph quoted above; and ss 8(4)(a) and 8(4)(c) reflected in the second paragraph quoted above.

Nettle JA also held that the charge in issue in Kypri was not a nullity. His Honour said this:

Although the failure to include a reference to subs (1) of s 55 of the Road Safety Act was a defect, it was the sort of defect which, at least up until the expiration of the limitation period, could have been cured by amendment. Nor is there any reason to suppose that the charge in this case became a nullity upon the expiration of the limitation period. Although a defective summons may not be amended in order to allege a new and different charge after the expiration of the limitation period, that is not because the defective summons is regarded as a nullity. It is the result of a rule of practice — akin to the civil procedural rule in Weldon v Neal — that an amendment will not be allowed if it would result in an improper avoidance of the limitation period. And the rule is predicated on the summons not being a nullity.
…
As McMahon shows, if a charge is defective for failing to aver an essential element of the offence alleged, but contains sufficient information to enable a reasonable defendant to determine the true nature of the offence alleged, it may be amended (even after expiration of the limitation period) in order to accord to what was always understood to be the true nature of the offence alleged. Until such a charge is so amended, however, it remains ineffective.[16] Where, therefore, such a charge is not so amended until after expiration of the limitation period, it will not be until after the expiration of the limitation period that there exists an effective charge.[17] So, therefore, where such an amendment is made after expiration of the limitation period it will defeat the limitation period. The point of McMahon is that such an amendment is regarded as acceptable; for the reason that it is not unfair so to defeat the limitation period where the defendant has been made to understand the true nature of the offence alleged before the limitation period expired.[18]

[16]It would not sustain a conviction in unamended form.

[17]Albeit that its effect is then taken to date back to the date of issue.

[18]Kypri (2011) 33 VR 157, 169 [35] (emphasis added) (citations omitted), 169–70 [37] (emphasis added) (footnotes in original); [2011] VSCA 257. See also Ciorra v Cole (2004) 42 MVR 547, 551 [18], 552–3 [25]–[30], 554 [36], 560 [60] (Redlich J); [2004] VSC 416 (‘Ciorra’).

Those statements remain apposite.

Nettle JA’s remarks further support our conclusion that a charge-sheet that contains a defect — even one that might have resulted in the charge being considered a nullity at common law — is not a nullity.

The applicants submitted that Kypri ought not be followed by this Court, because of the differences between s 50 of the MCA and s 8 of the CPA (as discussed above). Further, the applicants submitted that we ought to follow the earlier decision of Eames J in Flanagan v Remick,[19] where his Honour held that a particular charge was a nullity and could not be amended. In that case a man had been charged with offences under the Road Safety (Traffic) Regulations 1988 and the Road Safety (Procedures) Regulations 1988. However, those regulations had been repealed by the time of the alleged offending, and been replaced with differently worded provisions to similar effect. Using s 50 of the MCA, the magistrate amended the charge, outside the limitation period, to refer to the new regulations. Eames J held that the magistrate had erred in doing so. As Nettle JA explained in Kypri:

[Eames J] considered that the charge as originally constituted was ‘a nullity from the outset’ and, therefore, that:
The purported amendments were not for the purpose of more accurately identifying the statutory basis for the charges which had been laid against [the defendant] by the informant, but were intended to allege what amounted to entirely new offences against him.

Eames J added that it made no difference that the defendant had not been misled by the misdescription of the offences charged. His Honour said that the defendant was required to be charged with ‘offences which were known to the law’ and those which were alleged were not.[20]

[19][2001] VSC 507 (‘Flanagan’).

[20]Kypri (2011) 33 VR 157, 167–8 [30]–[31] (citations omitted); [2011] VSCA 257.

Nettle JA expressly disapproved of Eames J’s approach. His Honour said this:

With respect, I take a different view of the matter. The reasoning in Flanagan assumes that the High Court’s analysis in John L (which was concerned with the position at common law) applies where the common law has been modified by a provision like s 50 of the Magistrates’ Court Act. In fact it does not. As has been explained, although failure to allege an element of an offence may result in invalidity which at common law is incapable of being cured by amendment, that is not so under s 50. Flanagan also treats an amendment which substitutes a reference to legislation which was in force at the time of the commission of the alleged offence for a reference to legislation which had not come into force at that time as tantamount to alleging an ‘entirely new offence’. The better view is that, where the terms of the two pieces of legislation are the same or substantially the same, it is not a case of substituting a different offence.[21]

[21]Ibid 168 [32]. See also Ciorra (2004) 42 MVR 547, 561 [62] (Redlich J); [2004] VSC 416.

We agree with Nettle JA’s analysis of Flanagan. We reject the applicants’ invitation to apply Eames J’s reasoning to s 8 of the CPA, instead of the approach adopted by Nettle JA. In our view Nettle JA’s approach to amendment under s 50 of the MCA was plainly correct and, with one qualification, can usefully inform the proper construction of s 8 of the CPA.

The qualification to which we refer is that, in Kypri, Nettle JA took the view that, under s 50 of the MCA, amendment after the expiry of the limitation period was permitted if the true nature of the offence, although not apparent from the face of the charge and summons, was apparent from other material (such as particulars or a brief of evidence) that had been served on the defendant prior to the expiration of the limitation period.[22] That aspect of his Honour’s reasoning in Kypri can have no application to s 8(4)(a) of the CPA, as the respondents in the present matters accepted. That is because s 8(4)(a) requires that ‘the charge-sheet before the amendment sufficiently disclosed the nature of the offence’ (emphasis added). That clear language leaves no room for recourse to other materials that might have been provided to the defendant prior to the expiration of the limitation period.
[22]Kypri (2011) 33 VR 157, 170 [39]–[41]; [2011] VSCA 257.

However, we accept the respondents’ submission that it is permissible to have regard to materials other than the charge-sheet when considering whether the amendment in question would ‘cause injustice to the accused’ under s 8(4)(c).

The applicants also relied upon Broome v Chenoweth,[23] where Dixon J said this (dealing with a power of amendment conferred by s 239(1) of the Income Tax Assessment Act 1936 (Cth)):

Whether an information disclosing no offence can be amended has been the subject of some difference of judicial opinion. … Probably it is necessary to deal with the question as a matter of degree and not by a firmly logical distinction. An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which, upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment, if justice is not to be defeated. By contrast, at the other extreme, an information may contain nothing which can identify the charge with any offence known to the law. Such a case may not be covered by the power of amendment.[24]

[23](1946) 73 CLR 583; [1946] HCA 53.

[24]Ibid 601.

Of this passage, the following observations may be made: first, it concerned a different statutory provision; secondly, his Honour’s remarks were by way of obiter; and, thirdly, the remarks were guarded — his Honour said that, of the ‘other extreme’, such a case ‘may not be covered by the power of amendment’ (emphasis added). That is, Dixon J was not expressing a concluded view in that regard.

In our opinion, even accepting that, as Dixon J was intimating, s 239 of the Income Tax Assessment Act 1936 did not allow for an amendment of a charge that ‘contained nothing which can identify … any offence known to the law’, such an amendment would now be governed by the terms of s 8 of the CPA. Thus, if the limitation period had not expired, amendment would be permitted so long as it would not do injustice to the accused; and if the limitation period had expired, amendment would be permitted only if ss 8(3) and 8(4) were satisfied. Of course, in the extreme example given by Dixon J, it might well be that s 8(4)(a) (requiring that the unamended charge-sheet sufficiently disclosed the nature of the offence) would not be satisfied. But that would be a question to be assessed by reference to the particular charge on the particular charge-sheet.

Validity of a charge that fails to comply with cl 1(b) of sch 1

A separate and distinct question arises as to whether a charge that fails to comply with cl 1(b) of sch 1 of the CPA is invalid. In that regard, we note that s 9(1) does not, in terms, deal with the validity of a charge, as opposed to a charge-sheet. In contrast, s 9(2) deals with the validity of a charge on a charge-sheet, in relation to certain matters concerning time.[25]
[25]Section 9(2) is relevant to one of the present matters, Nunn, but not to Fox or Bant.

In our opinion, s 9(1), considered in isolation, has not abrogated the common law in relation to the validity of a charge. Not only is there an absence of the clear language that would be expected if the common law were to be abrogated,[26] the contrary is true by reason of the section not referring expressly to the validity of a charge, as opposed to a charge-sheet.
[26]See, eg, Potter v Minahan (1908) 7 CLR 277, 304 (O’Connor J); [1908] HCA 63; Ex parte Walsh and Johnson; Re Yates (1925) 37 CLR 36, 93 (Isaacs J); [1925] HCA 53; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 341 (Mason ACJ, Wilson and Dawson JJ); [1983] HCA 9; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, 553 [11] (Gleeson CJ, Gaudron, Gummow and Hayne JJ), 562–3 [43] (McHugh J), 584 [111] (Kirby J), 591–2 [132] (Callinan J); [2002] HCA 49; A-G (WA) v Marquet (2003) 217 CLR 545, 599 [163] (Kirby J); [2003] HCA 67.

However, in our view the common law concerning the content and validity of a charge has been affected by cl 1 of sch 1 (which sets out the matters to be included in a charge) and s 8 (which, as we have explained, permits amendments to a charge on a charge-sheet). In our opinion, a charge on a charge-sheet filed under the CPA that fails to conform to the common law requirements for a valid charge is not necessarily invalid. That is, it is necessary to focus on the terms and effect of the relevant provisions of the CPA because, as was pointed out in Southgate, the CPA now spells out the statutory requirements for a charge.[27]
[27]Southgate [2018] VSC 236, [65] (Priest JA).

In particular, by reason of s 6(3), a charge-sheet must comply with sch 1, which sets out the requirements applicable to a charge. The requirements of cl 1 of sch 1, and their relationship to the common law, were considered by this Court in Baiada.[28] Ferguson and McLeish JJA[29] observed as follows:

The [CPA] requires charge-sheets to contain the particulars that are necessary to give reasonable information as to the nature of the charge. As Robson AJA has observed, the requirements of the CP Act do not supplant the common law requirements. Rather, the common law elucidates what constitutes ‘reasonable information’. That is, if the charge is to be valid, the essential factual elements of the offence, in addition to its legal nature, must be identified in the charge.[30]

[28][2015] VSCA 344. We note that the Court in Baiada was not required to consider the power of amendment in s 8 or the terms and effect of s 9.

[29]As her Honour then was.

[30]Baiada [2015] VSCA 344, [5] (emphasis added) (citations omitted).

Their Honours went on to explain the relationship between the common law and sch 1 of the CPA in some greater detail. They held that the test for the adequacy of the particulars contained in a charge is supplied by cl 1(b) of sch 1.[31] However, they went on to observe as follows:

Although the governing test is that in cl 1(b), however, it is apparent that it has much in common with the approach of the common law. In Johnson v Miller the High Court was considering a charge governed by s 181 of the Justices Act 1936 (SA), which provided that ‘It shall be sufficient in any ... complaint, if the same gives the defendant a reasonably clear and intelligible statement of the offence or matter with which he is charged’. McTiernan J described this provision as embodying ‘the well-established rule of practice in criminal proceedings’ that ‘fair information and reasonable particularity as to the nature of the offence charged must be given to the defendant’.
This requirement has been expressed in different ways. In Johnson v Miller, Dixon J referred to ‘the necessity of specifying the time, place and manner of the defendant’s acts or omissions’. In Smith v Moody, on which the High Court relied in that case, Lord Alverstone CJ referred to ‘the old rule of criminal practice which requires that fair information and reasonable particularity as to the nature of the offence must be given’. Wills J said that ‘whatever is necessary to show that the person convicted has done something which brought him within the words of the statute’ must be specified, and spoke later of the need for sufficiency ‘with respect to the ingredients of the offence’ committed. More modern formulations have looked to ‘the nature of the offence and the manner in which it had been committed’, the ‘substance of the charge’ and ‘the essential factual ingredients’ of the offence.
The question that arises, bearing these authorities in mind, is whether the present charge contained the particulars necessary to give reasonable information as to the nature of the charge. The ‘nature of the charge’ involves the conduct making up the actual ingredients of the offending.[32]

[31]In so holding, their Honours considered Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, in which the High Court had held that s 11 of the Criminal Procedure Act 1986(NSW) had not abrogated the common law rule requiring specification of the time, place and manner of the defendant’s acts or omissions. In a passage that we adopt, Ferguson and McLeish JJA said as follows, at [13] (emphasis added):

In Victoria, the provision corresponding to s 11 is cl 3 of sch 1 of the [CPA]. Its operation is consistent with that of s 11 as described by the plurality in Kirk. However, it is plain from its terms that cl 3 addresses only the first of the two requirements under the Victorian legislation set out above. The common law is affected by the second requirement of cl 1. Clause 1(b) supplies a statutory test for determining the adequacy of the particulars furnished as part of the charge. There is no equivalent to cl 1(b) in the New South Wales legislation. Kirk says nothing as to the relationship of the common law authorities to a statutory test of the Victorian kind.

[32]Baiada [2015] VSCA 344, [14]–[16] (emphasis added) (citations omitted).

We pause to observe that the various different ways in which the common law approach had been framed, as identified in the passages above, may do more to obfuscate than to illuminate the requirement in cl 1(b) of sch 1 that a charge contain ‘the particulars … necessary to give reasonable information as to the nature of the charge’. Given that there is a statutory test, the preferable course is, as their Honours acknowledged in the final paragraph quoted above, to focus on the language of the statute. While the common law can assist in understanding what might satisfy the requirement, the test is not a common law test; it is a statutory test. Further, whether the particulars provided in a charge will satisfy that statutory test will be a question of fact and degree in a given case, depending on the offence(s) in question and the factual allegations. There is no verbal formula that can be substituted for the statutory test.

A charge that fails to disclose an offence known to law would, ipso facto, fail to comply with cl 1(b) of sch 1. Such a charge would also be invalid at common law. However, although a charge of this kind is also commonly described as ‘invalid’ under the CPA,[33] it is important to emphasise that the power of amendment of a charge-sheet in s 8 — which includes a power to amend a charge on a charge-sheet — means that, as Nettle JA explained in Kypri, a charge that would have been invalid at common law is capable of amendment under s 8 of the CPA (so long as the constraints on the amendment power are not transgressed). Thus such a charge is not a nullity, and in that regard it may be misleading to describe it as ‘invalid’. Rather, it would be preferable to describe such a charge as ‘ineffective’, to use the language adopted by Nettle JA in Kypri.[34] That is, as his Honour explained, such a charge is insufficient to found a conviction. That is consistent with what Dixon J said in Johnson v Miller,[35] namely that ‘[i]f it appears to the court of summary jurisdiction that … the complaint fails to disclose any offence or matter of complaint, then, unless the complaint is amended, the court must dismiss it’.[36]
[33]Including, implicitly, in Baiada itself, where Ferguson and McLeish JJA noted that ‘the issue for determination is whether that charge is valid’: [2015] VSCA 344, [5]. See also Wells [2020] VSC 51, [59] (Quigley J).
[34]Kypri (2011) 33 VR 157, 169–70 [37]; [2011] VSCA 257.
[35](1937) 59 CLR 467; [1937] HCA 77 (‘Johnson’).
[36]Ibid 486.

This is an orthodox application of the principle articulated by the plurality in Project Blue Sky:

[A]n act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.[37]

[37]Project Blue Sky (1998) 194 CLR 355, 388–9 [91] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28.

In our opinion, it is important not to let the traditional language of invalidity, adopted from the common law, obscure the important features of the present statutory regime. The legal consequences of a defect or irregularity in a charge that constitute a breach of cl 1(b) of sch 1 are, under the CPA, different from the legal consequence of a defect or irregularity under the common law. Even if the term invalidity is used, it is significant that such defects are susceptible to being cured by amendment, and do not result in the charge being a nullity, or in the court lacking jurisdiction to hear it. That is, the statutory scheme manifests an intention that a charge that contains a defect is not a nullity. Of course if the defect is not, or cannot be, cured by amendment then, depending on the circumstances, it may be appropriate for the magistrate to dismiss the charge.

The relationship between s 8(4) and cl 1 of sch 1

The applicants submitted that the charges in these three cases could not be amended because, if it were accepted that the charges failed to satisfy cl 1(b) of sch 1, then the charges necessarily failed to sufficiently disclose the nature of the offence, and thus also failed to satisfy s 8(4)(a).

Relatedly, they also submitted that, if it were accepted that the charges did not contain the essential elements of the offence, then the charges were invalid and any amendment would fail to satisfy ss 8(3) and 8(4)(b), because to cure a defect going to invalidity would necessarily constitute the bringing of a proceeding for a new offence.

In support of these arguments the applicants relied upon a decision of Ginnane J in the trial division of this Court in Glenister v Magistrates’ Court of Victoria.[38] In that case a magistrate had held four charges under the Occupational Health and Safety Act 2004 to be invalid because they failed to aver essential elements of the offence. The magistrate held that the charges could not be amended and dismissed them. Ginnane J upheld the magistrate’s decision in relation to three of the four charges.
[38][2014] VSC 265 (‘Glenister’).

It is apparent from various passages in Ginnane J’s reasons that his Honour equated the failure to aver essential elements of the offence with a failure of the charge-sheet to sufficiently disclose the nature of the offence. It is also clear that his Honour considered that amending charges which failed to aver essential elements of the offences would amount to the commencement of a proceeding for new offences. The relevant passages are as follows:

Because charge 1 does not contain the essential elements of the offence that I have referred to in the previous paragraphs, I consider that the charge-sheet before the amendment did not sufficiently disclose the nature of the offence and cannot be amended under the power contained in s 8(4)(a) of the CPA.
This finding also affects charges 2 and 3, which for similar reasons fail to ‘give reasonable information as to the nature of the charge’ and do not sufficiently disclose the nature of the charge.
...
I do not consider that, with the exception of charge 4, the charge-sheet before the amendment sufficiently disclosed the nature of the offences, so as to permit an application to be made to amend the charges. The existing charge-sheet, because it did not contain the essential elements of charges 1, 2 and 3 or the particulars that were necessary to give reasonable information as to the nature of the charges, did not sufficiently disclose the nature of the offences.
...
I also consider that the proposed amendments to charges 1, 2 and 3 do amount to the commencement of a proceeding for a new offence in respect of those charges, because the original charges were not valid. Therefore, the second requirement in s 8(4) was also not established in respect of those charges. However, I do not consider that the proposed amendments to charge 4 amounted to the commencement of a proceeding for a new offence. The essential elements of the offence were already contained in the charge.[39]

[39]Ibid [100]–[101], [163], [165].

Further, Ginnane J explained the relationship between s 8(4)(a) and cl 1(b) of sch 1 as follows:

In my opinion, the requirement of s 8(4)(a), of ‘sufficiently disclosing the nature of the offence’, directs attention to the requirements of clause 1 of Schedule 1 of the CPA, which, in turn, requires a statement of the offence and particulars giving reasonable information as to the nature of the charge. A statement of the offence must contain both of those requirements. If they are both present, the charge-sheet before the amendment sufficiently discloses the nature of the offence.[40]

[40]Ibid [169].

In Walters v Magistrates’ Court of Victoria, Zammit J followed Ginnane J, but her Honour’s observations were obiter only.[41]
[41][2015] VSC 88, [87] (‘Walters’).

In Director of Public Prosecutions v Lamb,[42] Beale J held that both Ginnane J’s judgment in Glenister, and Zammit J’s judgment in Walters, in relation to these matters, were ‘plainly wrong’.[43] His Honour said as follows:

I respectfully disagree with Ginnane J that the failure of a charge to aver an essential element of an offence equates with a failure of a charge-sheet to sufficiently disclose the nature of an offence. I disagree with this restrictive view for several reasons. First, it pays insufficient regard to the textual differences between the requirement for a valid charge and the preconditions for the existence of a power to amend an invalid charge. Second, the restrictive view gives the word ‘sufficiently’ in s 8(4)(a) no work to do. Third, notwithstanding the absence of clear language in s 8(4) compelling such a restrictive view, it effects a major erosion of the power of amendment that existed under the previous statutory framework as explained in Kypri. Fourth, the restrictive view is not in the interests of justice.[44]

[42][2021] VSC 615 (‘Lamb’).

[43]Ibid [66].

[44]Ibid [59].

We agree with Beale J and respectfully disagree with Ginnane J. A failure of a charge to aver an essential element of an offence does not necessarily equate with a failure of a charge-sheet to sufficiently disclose the nature of an offence.

We also respectfully disagree with Ginnane J’s conclusion that an amendment to a charge will amount to the commencement of a proceeding for a new offence in respect of that charge where the original charge was not valid.[45] As discussed above, adopting the approach articulated by Nettle JA in Kypri, a charge that does not contain the essential elements of the offence is not, under a statutory regime of the present kind, a nullity. Such a charge is capable of amendment to cure the defect, subject to the limitations found in ss 8(3) and 8(4)(a). Thus, the question of whether the amendments would amount to the commencement of a proceeding for a new offence is not answered simply by observing that the unamended charge was ‘invalid’, or that it failed to include the elements of the offence. Whether an amendment involves the commencement of a proceeding for a new offence is a matter of substance, to be assessed by comparing the unamended charge and the amended charge, as discussed above. In our opinion Ginnane J’s reasoning is inconsistent with Nettle JA’s analysis in Kypri.
[45]Glenister [2014] VSC 265, [165].

As for the relationship between s 8(4)(a) and cl 1 of sch 1, which was central to the applicants’ arguments in the present matters, it is important to emphasise that the language of the two provisions, although similar, contains some important differences. Thus, s 8(4)(a) requires that the charge-sheet, prior to its amendment, sufficiently disclosed the nature of the offence. In contrast, cl 1(a) requires that a charge must state the offence, and cl 1(b) requires that a charge must contain the particulars that are necessary to give reasonable information as to the nature of the charge.

In our view it is not possible, in light of those differences in language, to conclude that s 8(4)(a) simply equates to cl 1 of sch 1. It is correct to say that, if a charge on a charge-sheet complies with cl 1, it will satisfy s 8(4)(a). But it does not follow that, if a charge on a charge-sheet fails to comply with cl 1 of sch 1, it necessarily fails to comply with s 8(4)(a). That is, compliance with cl 1 of sch 1 is sufficient, but not necessary, to comply with s 8(4)(a).

In our opinion, the language of s 8(4)(a) is directed at quite a different level of specificity than the language of cl 1 of sch 1. That is, the latter requires precise and specific information about the offence and the facts giving rise to the charge. In contrast, s 8(4)(a) requires something less: that the ‘nature’ of the offence (rather than the precise offence) be ‘sufficiently’ disclosed. That must permit something less than full and specific disclosure, in order to give the words ‘sufficiently’ and ‘nature of’ some work to do. Whether the nature of an offence is sufficiently disclosed will be a question of fact and degree that will depend on the offence in question and the way in which the charge is framed.

We note for completeness that, in assessing whether a charge-sheet sufficiently discloses the nature of the offence, it is permissible to have regard to all aspects of the charge-sheet, not just the charge itself.[46]
[46]Thus, for example, regard can be had to the section number and legislation specified on the charge-sheet (if they are not included in the charge itself), or, where relevant, the registration number of the vehicle specified on the charge-sheet (if it is not included in the charge).

This understanding of s 8(4)(a) — as being broader and less demanding than cl 1 of sch 1 — is, in our opinion, consistent with the purpose of s 8 of the CPA. That section is, as discussed in Fazal, intended to provide a broad power of amendment, while also protecting the accused against injustice and precluding the circumvention of the limitation period by the use of the amendment power.[47] Those objectives are better achieved by a broad reading of s 8(4)(a), which focuses on whether prior to the expiration of the limitation period, the accused was, in general terms, informed of the kind of offence with which they were charged. In contrast, the purposes of the section are not achieved by equating s 8(4)(a) with cl 1 of sch 1. Such an approach would mean that, if there has been a failure to comply with cl 1 of sch 1, even of a relatively minor nature, and if the limitation period has expired, then the charge cannot be amended. We do not think that is consistent with the text or purpose of the provisions.
[47]Fazal [2021] VSCA 103, [18]–[20] (McLeish, Niall and Kennedy JJA).

In further support of their argument that s 8(4)(a) is to be equated with cl 1(b) of sch 1, the applicants relied on the following passage from Nettle JA’s reasons in Kypri:

Where, however, as here, the charge and summons do not allege sufficient facts to enable a reasonable defendant to determine ex facie the sub-section of s 55 [of the MCA] under which the requirement is alleged to have been uttered, the charge is defective because it fails to convey the nature of the offence alleged.[48]

[48]Kypri (2011) 33 VR 157, 163 [16]; [2011] VSCA 257.

This passage, the applicants submitted, supported their argument that the words ‘nature of the offence alleged’ in s 8 in substance impose the same requirement as cl 1(b), which requires ‘reasonable information as to the nature of the charge’.

We do not consider that the passage quoted above supports the applicants’ submissions. The language used by Nettle JA is very similar to the language of s 8(4)(a) (as we observed previously). But his Honour’s language is different from the language of cl 1(b) of sch 1, in the same ways that the language of s 8(4)(a) is different from the language of cl 1(b).

Ultimately, in our opinion, Ginnane J’s reasoning in Glenister, in so far as it concerned the power of amendment in s 8 of the CPA, ought not be followed.[49]
[49]We note that there was no appeal from these aspects of Ginnane J’s judgment, thus, as noted above, there was no occasion for this Court in Baiada to consider the amendment power.

Summary of approach

As is apparent from the discussion above, some of the questions concerning the interpretation of the provisions of the CPA, and the interaction of those provisions with one another, are complex. However, in light of the above discussion, we can summarise our conclusions as follows:

(g) Filing a charge-sheet confers jurisdiction on the Magistrates’ Court to hear and determine the charges on the charge-sheet.

(h) A charge-sheet must comply with sch 1 of the CPA: s 6(3)(c). However, a charge-sheet that does not comply with sch 1 is not invalid simply by reason of that failure: s 9(1).

(i) Clause 1(b) of sch 1 supplies a statutory test for determining the adequacy of the particulars furnished as part of the charge: that it provides the particulars ‘necessary’ to provide ‘reasonable information’ about the ‘nature of the charge’. The common law informs the content of that statutory test. It is not necessary, in order to comply with cl 1(b), for the charge to set out all the matters that the prosecution may need to prove at trial.

(j) A charge-sheet may contain an error and yet comply with cl 1 of sch 1. In such a case, a magistrate would have jurisdiction to hear and determine the charge without amendment. However, if an error of this kind is identified, it would usually be preferable for the charge-sheet to be amended to correct the error.

(k) Where a charge-sheet or a charge fails to comply with cl 1 of sch 1, it may be able to be amended pursuant to s 8 of the CPA, subject to the limitations found in that section.

(l) A charge-sheet may be amended under s 8 of the CPA even if the charge fails to include an essential element of the offence or otherwise fails to disclose an offence known to law. More generally, the fact that a charge may have been invalid at common law does not mean that it cannot be amended under s 8 of the CPA. However, such a charge would be ineffective unless amended.

(m) If the limitation period for the offence has not expired, the power of amendment is broad, but constrained by the requirement to ensure that there is no injustice to the accused: s 8(1). In those circumstances a charge-sheet can be amended in such a manner as to add a new charge.

(n) If the limitation period for the offence has expired, there are greater constraints on the power to amend, namely:

(i) The unamended charge must sufficiently disclose the nature of the offence: s 8(4)(a). This is different from, and broader than, the requirements in cl 1 of sch 1 concerning the statement of the offence and the provision of reasonable information concerning the charge. The fact that a charge does not comply with cl 1 of sch 1 does not mean that the charge necessarily fails to sufficiently disclose the nature of the offence.

(ii) The amendment cannot amount to the commencement of a proceeding for a new offence: ss 8(3) and 8(4)(b). An amendment that cures a defect that would have caused a charge to be invalid at common law does not necessarily involve the commencement of a proceeding for a new offence. The fact that an amendment cures a failure to comply with cl 1 of sch 1 does not necessarily mean that it involves a proceeding of that kind. Whether an amendment amounts to the commencement of a proceeding for a new offence is a case-specific inquiry, and will require consideration of the particular offence initially alleged, compared with the offence alleged after the amendment.

(iii) The amendment cannot cause injustice to the accused: s 8(4)(c). Whether an amendment causes injustice to an accused will be a question of fact in each case.

(o) A magistrate has a duty to consider whether to amend a charge-sheet even if no application is made to amend, and a power to amend the charge-sheet on his or her own motion.[50]

(p) If a charge is ineffective and an amendment cannot be, or is not, made under s 8 then the charge should be dismissed

[50]Even where no application to amend has been made, if the power to amend is available then the prosecution ought to assist the magistrate in formulating an appropriate amendment.

We also wish to emphasise that, when confronted with an argument that a charge or a charge-sheet is invalid, or should be dismissed because it fails to comply with cl 1(b) of sch 1, it will often be the case that the first step that a magistrate should take is to consider whether the issue that has been taken with the charge or charge-sheet can be addressed by amendment. It is only if the issue cannot be addressed by amendment that it would be appropriate for a magistrate to dismiss or strike out the charges (assuming the complaint about the charge has merit).

We now turn to the resolution of the particular matters.

Bant v Grant[51]

[51]Bant v Grant [2021] VSC 276 (‘Bant Reasons’).

On 21 September 2019, Mr Bant was charged with a speeding offence under r 20(1) of the Road Safety Road Rules 2017 (‘Road Safety Road Rules’). The charge-sheet filed at the Magistrate’s Court of Victoria at Warrnambool read as follows:

The accused at Camperdown on 23/06/2019, being the driver of a vehicle, other than a heavy vehicle, on a length of road, namely, Princes Hwy between Rowans Road and Jubilee Park Rd, did drive at a speed which exceeded a speed-limit sign of 100 kilometres per hour, which applied to the accused for the length of road on which the accused was driving, by less than 35 kilometres per hour. Detected speed 129km/h. Alleged speed 127 km/h.

The reference to Rowans Road was wrong (it ought to have been Rowans Lane); and the place of the alleged offending, ‘Camperdown’, was wrong, because the length of the Princes Highway between Rowans Lane and Jubilee Park Road is in Allansford, not Camperdown. However, both the infringement notice (issued on interception) and the preliminary brief (served with the charge-sheet) correctly identified the locality as Allansford.

At the hearing of the charge in the Magistrates’ Court at Warrnambool on 14 August 2020, Mr Bant contested the validity of the charge, and complained that it breached s 6(3) and cl 1(b) of sch 1 of the CPA. As well as the complaint about the place of the alleged offending, he also complained of deficiencies as to the time of the offence and the description of the vehicle driven. However, the only complaint relevant on this application is that concerned with the misdescription of the location.

The prosecution accepted that the charge misdescribed the place of the alleged offending, and sought to amend the charge to address this. On 19 August 2020, the Magistrate gave leave to amend the charge to ‘delete “Camperdown,” and replace it with “Allansford,” and to delete “Rowans Road,” and replace it with “Rowans Lane.”’ The Magistrate ruled that the charge as amended was valid, and made orders requiring the prosecution to file an amended charge-sheet in accordance with this decision.

Mr Bant filed a judicial review application a few days after the 60-day time limit,[52] due to difficulties with the Court’s electronic filing system. He therefore sought an extension of time. He also sought an order in the nature of certiorari quashing the order of the Magistrate,[53] and orders in the nature of mandamus directing the Magistrate to rule that the charges were invalid, and unable to be amended, and to strike out the charges.
[52]Prescribed under Supreme Court (General Civil Procedure) Rules 2015, r 56.02(1).
[53]Despite the reference in the application to the order of the second respondent on 14 August 2020, her Honour treated the document as seeking judicial review remedies in relation to the Magistrate’s ruling of 19 August 2020: Bant Reasons, [6].

The judicial review application was heard by Richards J on 19 April 2021. On 19 May 2021, her Honour dismissed the proceeding, and also dismissed Mr Bant’s application for an extension of time for the commencement of the proceeding. Her Honour found that the charge could be amended to deal with the misdescription of the address.[54]
[54]Ibid, [70]–[71].

For reasons expressed below, we are of the view that her Honour was correct. We also consider that the charge was not in breach of cl 1(b) of sch 1 in any event.

Relevant legislative provisions

Mr Bant was charged under r 20(1) of the Road Safety Road Rules, which relevantly reads as follows:

A driver of a vehicle other than a heavy vehicle must not drive at a speed which exceeds the speed-limit applying to the driver for the length of road where the driver is driving by less than 35 kilometres per hour.[55]

[55]The penalty is 10 penalty units for a natural person, and 120 penalty units for a body corporate.

The relevant statutory provisions are otherwise set out earlier in these reasons.

Judge’s Reasons

Her Honour noted that the proceeding raised a number of questions for determination. Only questions (a), (c)(iii) and (d) remain relevant, as follows:

(a) Was the amendment precluded by sub-ss 8(3) and (4) of the Criminal Procedure Act, because:
(i)the charge-sheet before the amendment did not sufficiently disclose the nature of the offence; or
(ii)the amendment had the effect of charging a new offence after the expiry of the applicable limitation period?

….
(c) Is the charge invalid, because it does not contain particulars that are necessary to give reasonable information as to the nature of the charge, as required by s 6(3) and Sch 1, cl 1(b) of the Criminal Procedure Act, in relation to:

…
(iii)if the charge could not be amended, the place of the alleged offence?

(d) If the charge could not be amended, or is invalid, what orders should the Court make?[56]

[56]Bant Reasons, [6].

After setting out the relevant provisions of the CPA,[57] her Honour summarised the Magistrate’s ruling.[58]
[57]Ibid [9]–[14].
[58]Ibid [15]–[19].

Her Honour then commenced her own reasoning by considering whether the charge could be amended (question (a)), noting that the 12 month limitation period for the offence had expired. It followed that the charge-sheet could only be amended under s 8(4) of the CPA if it had already sufficiently disclosed the nature of the offence, if the amendment did not amount to charging a new offence, and if it would not cause injustice to the accused.[59]
[59]Ibid [20].

She identified the parties’ submissions,[60] and recorded that Mr Bant did not submit that the amendment caused him any injustice.[61]
[60]Ibid [21]–[27].
[61]Ibid [24].

In order to determine whether the charge-sheet ‘sufficiently disclosed the nature of the offence’, and also whether the amendment ‘had the effect of charging a new offence’, her Honour considered that it was necessary to identify the ‘essential factual ingredients’ of the offence of speeding under r 20(1) of the Road Safety Road Rules.[62]
[62]Ibid [28].

Her Honour considered the cases of Ciorra,[63] Director of Public Prosecutions v Kirtley[64] and Foster v Harris,[65] and also noted that the Road Safety Road Rules had been re-enacted subsequent to these cases.[66] She identified the essential elements of the current offence as follows:

(a) the accused drove a vehicle, other than a heavy vehicle;
(b) on a length of road; and
(c)exceeded the speed limit applying for that length of road, by less than 35 kilometres per hour.[67]

[63](2004) 42 MVR 547; [2004] VSC 416.

[64][2012] VSC 78 (‘Kirtley’).

[65][2012] VSC 637 (‘Foster’).

[66]Bant Reasons, [29].

[67]Ibid [38].

She further stated:

An additional aspect of the first element is that the vehicle is ‘other than a heavy vehicle’. It remains the case that the location of the length of road and the time of the alleged speeding are not essential factual ingredients of the offence. Rather, these matters are properly characterised as particulars of the offence, being the particular circumstances of the offence that the accused is alleged to have committed.[68]

[68]Ibid.

She found:

It follows that the charge in its original form sufficiently disclosed the nature of the offence with which Mr Bant was charged. It included all of the essential elements of the offence under r 20(1). Matters such as the location of the length of road, the time of day, or the description of the vehicle, are particulars rather than essential elements of the offence under r 20(1).[69]

[69]Ibid [39].

As to whether the amendment had ‘the effect of charging a new offence’, her Honour considered this Court’s judgment in Fazal, and stated:

It is clear that the amendment ordered by the magistrate did not have the effect of charging Mr Bant with a new offence. The essential elements of the offence remained the same – that Mr Bant drove a vehicle, other than a heavy vehicle, on the Princes Highway, at a speed that exceeded the speed limit of 100 kilometres per hour, by less than 35 kilometres per hour. The location of the alleged offence and the names of the nearest cross-roads were no more than particulars of the offence, and there was no obstacle to amending them to correct errors after the expiry of the limitation period.
The learned magistrate was entirely correct in her conclusion that the amendment did not create a new offence, and was a mere correction of an error made on the chargesheet. She was also correct in her conclusion that location is not an essential ingredient of the offence, and was merely included for procedural fairness.
Mr Bant’s challenge to the order amending the charge fails. The amendment was not precluded by sub-ss 8(3) or (4) of the Criminal Procedure Act.[70]

[70]Ibid [41]–[43].

Given her finding that the charge could be amended, it was unnecessary for her Honour to consider questions (c)(iii) or (d). She also rejected Mr Bant’s other complaints.[71]
[71]Her Honour concluded that the time of day is not an essential element of the offence, therefore the charge was not invalid by reason of its omission (Ibid [7(b)], [53], [55]). She also found that the description of the vehicle was not essential (Ibid [7(c)]), and that in any event, the registration number of the vehicle was stated on the charge-sheet, which sufficiently identified the vehicle (Ibid [63]).

Her Honour then made some observations about the possible application of s 9(1), which she considered raised a significant question.[72] For reasons given already, her Honour was correct to raise this issue given the important role played by s 9(1) in the legislative scheme. However, she did not hear full argument on the question, and did not need to determine it given the other conclusions she reached.
[72]Ibid [64]–[69].

Her Honour concluded that the charge could be amended, and was valid, and that the proceeding should be dismissed.[73] She noted that the proceeding was brought ought of time, and considered that no extension should be granted given the lack of merit.[74]
[73]Ibid, [70].
[74]Ibid [72]. She also included a postscript which noted his Honour’s judgment in Fox. She considered that his Honour’s conclusions accorded entirely with those expressed in the Bant Reasons, and confirmed her view that the arguments pressed were without merit; at [74]–[76].

Proposed grounds of appeal

The proposed grounds of appeal allege that her Honour erred in law in the following ways:

1. By holding under the circumstances that the charge under r 20(2) of the Road Safety Road Rules 2017 as currently particularised was a valid charge.

2. By not holding under the circumstances that:
i. the charge as currently particularised was invalid; and/or
ii. the charge as currently framed was invalid for failure to particularise the essential factual ingredients of the charge; and/or
iii. the charge as currently framed referred to the place of the alleged offence as a place that did not exist and/or was misdescribed in the charge to have that effect; and/or
iv. the charge as currently framed failed to meet the test for validity enunciated by Ferguson and McLeish JJA in Baiada Poultry Pty Ltd v Victorian WorkCover Authority (2015) 257 IR 204 at 210-1 [15]-[16]; and/or
v. the charge did not provide ‘reasonable information as to the nature of the charge’ under clause 1(b) of schedule 1 of the Criminal Procedure Act 2009.

3. By holding under the circumstances that the charge could be amended under s 8 of the Criminal Procedure Act 2009.
4. The learned trial judge erred in the exercise of judicial discretion in not granting an extension of time pursuant to r 56.02(3) Supreme Court (General Civil Procedure) Rules 2015.

Proposed grounds 1 and 2 (which were argued together) focus on an alleged lack of proper particularisation under cl 1(b) of sch 1, which is said to lead to the invalidity of the charge. Proposed ground 3, on the other hand, challenges the finding that the charge could be amended under s 8. Proposed ground 4 concerns the ultimate decision to refuse an extension of time.

In oral submissions, Mr Bant accepted that, if the charge-sheet could be amended under s 8, then it would be unnecessary to consider proposed grounds 1 and 2. This was a fair concession, and is also consistent with the approach of both her Honour and the Magistrate. More significantly, it is consistent with our statements, above, that it will often be the case that the first step to be taken is to consider whether any complaint can be addressed by amendment.

Accordingly, although Mr Bant’s primary submission was that the charge was invalid because it did not contain essential elements as required under cl 1(b) of sch 1, we will first consider proposed ground 3, which concerned whether the charge could be amended.

Proposed ground 3

Insofar as the amendment power was concerned, Mr Bant relied on the decision of Ginnane J in Glenister. He claimed that the charge could not be amended for the following reasons:

(q) first, because the charge did not contain particulars necessary to give ‘reasonable information as to the nature of the charge’ under cl 1(b) of sch 1, it necessarily followed that it did not ‘sufficiently disclose the nature of the offence’ as required under s 8(4)(a) (ie, Mr Bant equated s 8(4)(a) with cl 1(b) of sch 1);

(x) secondly, we consider that the unamended charge ‘sufficiently disclosed the nature of the offence’, as required by s 8(4)(a), namely a breach of r 20(2) of the Road Safety Road Rules by reason of his driving in excess of the speed limit. An inaccurate reference to the precise location at which the offence was alleged to have occurred was incapable of leading to a conclusion that the charge, in its unamended form, did not disclose the nature of the offence;

(y) finally, we consider that s 8(4)(c) was satisfied in this case. No argument was put by Mr Fox that the amendment would cause him any injustice; and we note for completeness that Mr Fox had been provided with the preliminary brief prior to the expiration of the limitation period.

It is important to emphasise that, although the charge contained an error, and hence arguably a ‘defect’, the charge was not invalid or a nullity, for the reasons we have explained above. Further, not every defect in a charge requires amendment in order for the Magistrates’ Court to have jurisdiction to hear and determine the charge. In the present case we consider that the defect — the mis-identification of the precise location of the alleged offence, by reference to a road that did not exist as a formal, named road — was not a defect that would have required the Magistrate to dismiss the charge had the charge not been amended.[93] Thus, as this Court observed in Gigante, which concerned a charge of speeding that misidentified the suburb in which the offending was said to have occurred:

It may well be that under the modern s 50 … amendment was not necessary and that the appellant could have been lawfully convicted on the unamended charge; for, as regards mere variance, the subsection simply prohibits the allowance of objection ‘for’ it (that is, on the ground of it), and the power conferred to amend is confined to the correction of ‘any defect or error in [the charge] in substance or in form’. But the appellant cannot complain that he had the benefit of correct particularisation of the offence. Justice, which is a two-way street, required either amendment or (on proof in due course of the necessary facts) conviction on the unamended charge. As regards the application for amendment, the only right exercise of discretion was to amend, to borrow the language of Brooking, JA in McMahon.[94]

[93]See, eg, Parmeter v Proctor (1949) 66 WN (NSW) 48 where Herron J held that an inaccurate identification of the street in which the accused was driving when the speeding offence was alleged to have been committed did not require the Magistrate to dismiss the charges, even in the absence of a power of amendment.

[94]Gigante (2001) 3 VR 296, 301 [18] (Batt JA, Tadgell JA agreeing at 297 [1], Callaway JA agreeing at 297 [2]) (emphasis added) (citations omitted); [2001] VSCA 4.

While that case concerned s 50 of the MCA, we see no reason to doubt that the same analysis is applicable to s 8 of the CPA.

That is, to use Nettle JA’s language from Kypri, we do not consider that the unamended charge against Mr Fox was ‘ineffective’. That is because the charge complied with sch 1: it contained a statement of the offence, as required by cl 1(a), and the particulars necessary to give reasonable information as to the nature of the charge, as required by cl 1(b). To use the language of the common law, it contained the ‘essential factual ingredients of the offence’. Thus we accept the respondent’s submission that the Magistrate could have proceeded to hear the charge without amendment, given the nature of the defect. However, if a defect is identified then it will generally be appropriate for the court to amend the charge so as to cure the defect.

Conclusion in Fox

Mr Fox’s application for leave to appeal is granted, but the appeal will be dismissed.

Nunn v Pezzimenti[95]

[95]Nunn v Pezzimenti [2021] VSC 313 (‘Nunn Reasons’).

The applicant, Allan Nunn, was apprehended by the first respondent, Leading Senior Constable Pezzimenti, at 11:30 am on 12 December 2018, while driving a prime mover on the Northern Highway, Kilmore.

According to the statement of Mr Pezzimenti forming part of the preliminary brief, Mr Nunn was requested to provide an oral fluid sample pursuant to s 55D(1) of the Road Safety Act 1986 (‘RSA’). Mr Pezzimenti formed the opinion that there was a prescribed illicit drug in Mr Nunn’s oral fluid and required him to provide a sample of oral fluid for testing by a prescribed device under s 55E of the RSA. Mr Nunn was unable to provide a sufficient sample and was accordingly required under s 55E(13) of the RSA to allow a blood sample to be taken by an approved health professional. The blood sample was taken at 12:55 pm on 12 December 2018, at Kilmore Hospital. When analysed, the sample confirmed the presence of methylamphetamine.

Leading Senior Constable Pezzimenti signed a charge-sheet as informant on 29 January 2019. The charge-sheet contains two charges.

The first charge reads:

1.The accused at Kilmore on 12 December 2018 did drive a motor vehicle while the prescribed concentration of drugs was present in his oral fluid.

The charge-sheet specified the relevant statutory provision as s 49(1)(bb) of the RSA.

The second charge reads:

2.The accused at Kilmore Hospital on 12 December 2018 within 3 hours after driving a motor vehicle did have a sample of blood taken from him in accordance with s 55E and the sample having been analysed by a properly qualified analyst within the meaning of s 57 did find that at the time of analysis a prescribed illicit drug was present in that sample in any concentration and the presence of the drug in that sample was not due solely to the consumption or use of that drug after driving or being in charge of the motor vehicle.

The legislation specified in relation to that charge was s 49(1)(i) of the RSA.

The matter was listed for a contested hearing before a Magistrate at the Magistrates’ Court at Shepparton on 1 July 2020. Submissions were made to the Magistrate on behalf of Mr Nunn contending that the charges were invalid as not complying with s 6(3) and sch 1, cls 1–3 of the CPA, and that they could not be amended under s 8 of the CPA. The Magistrate ruled that the charges were valid. He further ruled that if ‘there is any doubt as to whether or not either of the charges should make specific reference to the drug, methylamphetamine, it seems to me that either or both of the charges could be amended appropriately by including reference to the drug, methylamphetamine’.

Mr Nunn made an application by originating motion for judicial review seeking an order in the nature of certiorari to quash the order of the Magistrates’ Court by which the Court found the charges were valid, and an order in the nature of mandamus to compel the Magistrate to rule that the charges were invalid, to rule that the charges were unable to be amended, and to strike out the charges.

The originating motion came on for hearing before Beale J. His Honour delivered judgment on 16 June 2021. He determined that the charges were invalid and that, accordingly, the Magistrate’s decision that before amendment they were valid, ought to be quashed. He otherwise refused the orders sought by Mr Nunn on the basis that the Magistrate’s ruling that the charges could be amended was correct.[96]
[96]Ibid, [30], [40].

Mr Nunn now seeks leave to appeal.

Relevant legislative provisions

We have set out the relevant legislative scheme under the CPA. It is necessary to set out the relevant provisions of the RSA, as follows:

3        Definitions
(1)       In this Act—
…
prescribed concentration of drugs means, in the case of a prescribed illicit drug, any concentration of the drug present in the blood or oral fluid of that person;
prescribed illicit drug means—
(a)       methylamphetamine; or
(ab)     3, 4-Methylenedioxy-N-Methylamphetamine (MDMA);
(b)       delta-9-tetrahydrocannabinol;

…
49 Offences involving alcohol or other drugs
(1) A person is guilty of an offence if he or she—
…
(bb)drives a motor vehicle or is in charge of a motor vehicle while the prescribed concentration of drugs or more than the prescribed concentration of drugs is present in his or her blood or oral fluid; or

…
(i) has had a sample of blood taken from him or her in accordance with section 55, 55B, 55BA, 55E or 56 within 3 hours after driving or being in charge of a motor vehicle and—
(i) the sample has been analysed by a properly qualified analyst within the meaning of section 57 and the analyst has found that at the time of analysis a prescribed illicit drug was present in that sample in any concentration; and
(ii) the presence of the drug in that sample was not due solely to the consumption or use of that drug after driving or being in charge of the motor vehicle;

…
55D Preliminary oral fluid tests
(1) A police officer may at any time require—
(a)any person he or she finds driving a motor vehicle or in charge of a motor vehicle; …

to undergo a preliminary oral fluid test by a prescribed device and, for that purpose, may further require the person, if inside a motor vehicle, to leave the motor vehicle for the purpose of undergoing the test.

…
55E     Oral fluid testing and analysis
(1)       In this section—
authorised officer means—
(a)       a police officer … ;

…
(2) If a person undergoes a preliminary oral fluid test when required to do so under section 55D by a police officer … and—
(a) the test, in the opinion of the police officer … in whose presence it is made, indicates that the person's oral fluid contains a prescribed illicit drug;

…
any police officer … may require the person to provide a sample of oral fluid for testing by a prescribed device and, if necessary, analysis by a properly qualified analyst within the meaning of section 57B and for that purpose may further require the person to accompany any police officer … to a place or vehicle where the sample is to be provided and to remain there until—
(c) the person has provided the sample and any further sample required to be provided under subsection (5), the sample has been tested by a prescribed device and the person has been given (if necessary) a part of the sample under subsection (11) and complied with any requirement made of him or her under section 59; or
(d) 3 hours after the driving, being an occupant of or being in charge of the motor vehicle—

whichever is the sooner.

…
(13) The person who required a sample of oral fluid to be provided under subsection (2) … may require that person to allow a registered medical practitioner or an approved health professional nominated by the person who required the sample to take from him or her a sample of that person’s blood for analysis if it appears to him or her that—
(a) that person is unable to furnish the required sample of oral fluid on medical grounds or because of some physical disability or condition; or
(b)the prescribed device is incapable of testing for the presence in the sample of a prescribed illicit drug for any reason whatsoever—

and for that purpose may further require that person to accompany a police officer to a place where the sample of blood is to be taken and to remain there until the sample has been taken or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is the sooner.

Judge’s Reasons

Before his Honour, Mr Nunn submitted that each charge was invalid by reason of a failure to state the times of driving and of taking the blood sample; a failure to specify adequately the place of the offending; a failure to state the source of the police officer’s power to require Mr Nunn to take the oral fluid test and to allow the taking of a blood sample; a failure to state the name of the drug; and a failure to state the level of concentration of the drug allegedly detected.[97]
[97]Ibid [14].

In relation to the complaint as to the failure to state the times, his Honour found that the time of driving and/or the time of taking the blood sample, was not an element of either of the relevant offences.[98]
[98]Ibid [25].

His Honour found that the specification of place was sufficient, no greater specificity than the locality being required.[99]
[99]Ibid [26].

His Honour rejected the submission that it was necessary to state the source of the police power to require the relevant tests in the charges.[100]
[100]Ibid [27].

His Honour held that the concentration of the drug did not need to be stated, because any concentration would suffice.[101] But he held that the failure to specify the drug, methylamphetamine, in each of the charges, meant that there had been a failure to give reasonable information as to the nature of each charge. For this reason, his Honour concluded that the charges were ‘invalid’.[102]
[101]Ibid [31].
[102]Ibid [30].

It was also contended before his Honour that charge 2 was invalid for duplicity because of the inclusion of the words ‘or being in charge of’ in the last line of the charge. His Honour referred to the fact that in the first line the charge stated that the blood sample had been taken within three hours after ‘driving’. He considered that, reading the charge as a whole, the reference to ‘or being in charge of’ would not mislead a reasonable accused.[103]
[103]Ibid [32].

His Honour then turned to the question of amendment. He concluded that the Magistrate could properly amend the charges under s 8 of the CPA by the inclusion of the name of the drug in each of the charges. His Honour said:

Pursuant to s 8(4)(a), the power to amend a charge after the expiration of the limitation period is contingent upon the charge sheet before amendment having ‘sufficiently disclosed the nature of the offence’. Note that the power is not contingent on the charge sheet before amendment having ‘sufficiently disclosed the nature of the charge’, let alone ‘the particulars that are necessary to give reasonable information as to the nature of the charge’. The ‘nature of an offence’ is more general than the ‘nature of a charge’. If a charge has stated the alleged offence — as cl 1(a) requires it to do — it will have ‘sufficiently disclosed the nature of the offence’. In my view, both charges sufficiently disclosed the nature of the offence.
Pursuant to s 8(4)(b), amendment of a charge after the limitation period has expired is also contingent upon it not commencing a proceeding for a new offence. The inclusion of the name of the alleged drug did not alter the nature of the offences.
In early 2019 when the plaintiff was served with the charges and summons, he was also served with a certificate indicating that the drug found in his blood system was methylamphetamine. The amendment to the charges naming the drug confirmed what the plaintiff already knew. There was no injustice occasioned by the amendment.[104]

[104]Ibid [36]–[38] (emphasis in original) (citations omitted).

His Honour further held that an amendment to charge 2 to delete the words ‘or in charge of’ was ‘well within the power of amendment’ as the charge-sheet already sufficiently disclosed the nature of the offence, the amendment did not commence a proceeding for a new offence, and the amendment did not cause any injustice to Mr Nunn.[105]
[105]Ibid [39].

His Honour made an order in the nature of certiorari quashing the Magistrate’s decision that the original charges were valid, but otherwise refused the relief sought on the basis that the Magistrate had validly amended the charges.[106]
[106]Ibid [40].

Proposed grounds of appeal

The proposed grounds of appeal are as follows:

1. The learned Trial Judge erred in finding that the learned Magistrate did not err when the Magistrate held the Road Safety Act 1986 charges to be valid and there was no failure to comply with the Criminal Procedure Act 2009 s 6(3)(c) read with s 9(1) and (2)(a) and Sched 1 Cl 1(b) and Cl 2(1) and relevant common law in not providing all ‘reasonable information as to the nature of the charge’ in omitting—
(a)the time of day of the driving and the time of day of requirements for testing relating to the offences which were elements or at least essential factual ingredients of the s 49(1)(i) offence and essential factual ingredients of the s 49(1)(bb) Road Safety Act offence;
(b) the relevant ordinary words of the reference in the s 49(1)(i) charge relating to the powers to require drivers to submit to testing procedures for the offence being ‘in accordance with section 55E’ and ‘within the meaning of section 57’ when reference in the charge to the applicable Statute following expression of those sections was omitted;
(c) the relevant ordinary words relating to the powers to require drivers to submit to testing procedures referred to in ss 55E and 57 for the s 49(1)(bb) offence.

2. The learned Trial Judge erred in finding that the learned Magistrate had not erred when the Magistrate held that there was power to amend the charges under the Criminal Procedure Act 2009 s 8 to add the reasonable information as to the nature of the charge following the expiration of the 12 month limitation period in s 7(1) of the Criminal Procedure Act to commence proceedings for these summary s 49(1)(bb) and (i) offences under the Road Safety Act 1986, notwithstanding previous recent authority in the Supreme Court that the expression in s 8(4)(a) of the Criminal Procedure Act, ‘the charge-sheet before the amendment sufficiently disclosed the nature of the offence’ meant compliance with Sch 1 Cl 1(a) and Cl 1(b) of the Criminal Procedure Act.
3. The learned trial judge erred in finding that the learned Magistrate had not erred in amending the second charge when in all the circumstances the charge was incapable of amendment and should have been struck out by reason of duplicity.

Submissions

In Mr Nunn’s written case, he submitted that his Honour had been correct in concluding that the omission of the name of the drug meant that the charges were invalid. He submitted that the charges were also invalid because they omitted other ‘reasonable information’ as to the nature of each charge.

Mr Nunn submitted that the times of driving and collection of the blood sample were essential elements of the offence in charge 2 (s 49(1)(i)), because of the requirement that the sample be collected within three hours of the driving. He submitted that s 9(2)(a) of the CPA, in providing that a charge is not invalid by reason only of omitting to state the time ‘unless time is an essential element of the offence’, indicated that where time is an essential element, as is the case in relation to s 49(1)(i), an omission to state the time meant that the charge was invalid.

Mr Nunn submitted that the charges were also invalid because the source of the power to require the test and the taking of the sample had not been specified. He submitted that the reference to section numbers in charge 2 (s 49(1)(i)), without reference to the statute or the content of the relevant provisions, constituted a failure to set out relevant matters in ‘ordinary language’. In relation to charge 1 (s 49(1)(bb)), he submitted that although a statement of the source of power was not an element of the offence, it was reasonable information which was required to be provided.

In relation to the power to amend, Mr Nunn submitted that Ginnane J’s judgment in Glenister was correct and ought to have been followed.

In oral submissions on behalf of Mr Nunn, counsel’s focus was on charge 2.

Mr Nunn submitted that none of the circumstances provided for in s 55E of the RSA had been specified in charge 2. Mr Nunn submitted that the charge ought to have specified the inability to furnish a sufficient oral fluid sample, the requirement for the taking of a blood sample, the time of driving, the time of testing, and each of the other matters provided for in s 55E(13).

In this context Mr Nunn submitted that the offence in s 49(1)(i) was ‘ambulatory’, like the provision considered by Ormiston J in Woolworths (Victoria) Ltd v Marsh.[107] He also relied on the decision of Nathan J in Kerr v Hannon[108] in support of a submission that the defects were fundamental and could not be cured by amendment.
[107](Supreme Court of Victoria, Ormiston J, 12 June 1986) (‘Woolworths’).
[108][1992] 1 VR 43 (‘Kerr’).

Mr Nunn submitted that the words ‘or being in charge of’ in charge 2 rendered that charge duplex. He submitted that this supported a conclusion that the charge was a nullity and that it could not be amended. When it was pointed out that this submission did not fall within any of the then existing grounds of appeal, Mr Nunn sought and was granted leave to add what is set out above as proposed ground 3.

Particular reliance was placed upon the fact that the second charge did not specify the time of driving or the time of the taking of the blood sample. Mr Nunn submitted that these times were essential elements of the offence given the three hour time limit.

Mr Nunn submitted that the failure to identify the drug in each of the charges, thereby rendering the charges invalid, was a deficiency which could not be remedied by amendment. In that context, Nettle JA’s statement in Kypri that the charge in that case was defective because it had failed ‘to convey the nature of the offence alleged’[109] was relied upon. Mr Nunn submitted that Ginnane J’s decision in Glenister was therefore correct.
[109]Kypri (2011) 33 VR 157, 163 [16]; [2011] VSCA 257.

The written case on behalf of the first respondent,[110] Mr Pezzimenti, focussed upon the proposed grounds of appeal as they then existed (without proposed ground 3).
[110]As is the invariable custom, the second respondent, the Magistrates’ Court of Victoria, did not participate in the proceeding.

In relation to proposed ground 1(a) concerning specification of times, the written case addressed charge 1 and charge 2 separately.

In relation to charge 1 (s 49(1)(bb)), the first respondent submitted that the time of driving was not an element of the offence.

In relation to charge 2 (s 49(1)(i)), the first respondent submitted that it is not an element of the offence that the accused was driving at any particular time, or that the sample was taken at any particular time. The relevant offence occurred consequent upon a sample being taken ‘within a particular timeframe’. The written case accepted that, if requested, the prosecution would have to particularise the relevant times, but that did not mean they were essential elements of the offence.

On this issue, the first respondent’s written case relied upon his Honour’s decision in Fox. An application for leave to appeal that decision was heard by us, and we have dealt with the decision in Fox separately in this judgment.

In relation to proposed grounds 1(b) and (c) concerning specification of the power to require a blood sample pursuant to s 55E of the RSA, the first respondent submitted that the matters which it was asserted had to be specified were not essential elements of the offence. They were matters of proof.

In relation to proposed ground 2 concerning the power to amend, the first respondent’s written case accepted that the failure to specify the drug meant that the charges were ‘invalid to that extent’. The first respondent submitted that his Honour had been correct in his conclusion that an amendment to add the name of the drug could and should be made under the provisions of s 8(4) of the CPA. Particular reliance was placed upon Nettle JA’s decision in Kypri. The first respondent submitted that his Honour had not erred by failing to refer to, or to follow, the decision in Glenister.

In oral submissions the first respondent resiled from the statement in the written case that the failure to specify the drug meant that charge 2 was ‘invalid’. The first respondent submitted that the better characterisation was that the charge was ‘defective’. The first respondent accepted that by reason of the failure to specify the drug, charge 2 had not contained the particulars necessary to give reasonable information as to the nature of the charge, as required by sch 1 cl 1(b). The first respondent submitted that there had been no failure to comply with cl 1(a). Further, the first respondent submitted, the unamended charge, although defective, was not ‘ineffective’; and the Magistrate could have heard and determined it unamended.

In oral submissions the first respondent submitted that Mr Nunn’s contention concerning the alleged failure to set out all of the matters provided for in s 55E of the RSA was misconceived. Apart from anything else, the first respondent submitted that a charge formulated in that manner would ‘go for half a page’. The first respondent submitted that any attempt to draw an analogy between a charge under s 49(1)(i) of the RSA relying upon s 55E, and a charge under s 49(1)(e) relying on s 55 (the position in Kypri), was misconceived. The first respondent submitted that s 55E was ‘empowering’ not ‘prohibiting’.

In relation to the submissions made concerning specification of the time of driving and of taking the sample, the first respondent submitted that the essential element was that the taking of the sample be within three hours of the driving, and that essential element was specified.

In relation to the contention that the second charge could not be amended because of duplicity, the subject of the added proposed ground 3, the first respondent submitted that the charge was not duplicitous. The first respondent further submitted that Ormiston J’s decision in Woolworths needed to be now read in the light of what this Court had said in Kypri. In addition, the first respondent submitted that the question of amendment is now governed by s 8 of the CPA.

The first respondent submitted that many of the matters put on behalf of Mr Nunn amounted to an assertion that an ‘invalid’ charge could not be amended to make it ‘valid’ because that would constitute the commencement of a proceeding for a new offence. The first respondent submitted that this proposition was entirely inconsistent with this Court’s judgment in Kypri.

The first respondent submitted that when confronted with a ‘defective’ charge, the first step ought to be to consider amendment and, in this case, the failure to specify the drug was clearly a matter that could properly be the subject of an amendment under s 8(4) of the CPA. The ‘nature’ of the offence was stated and made clear both by the terms of each of the charges and the references to the statutory provisions. An amendment would not amount to the commencement of a proceeding for a new offence. All of the ‘legal particulars’ of the offence remain exactly the same, a factual matter would be added. The first respondent submitted that there was no suggestion of injustice. The statement of Mr Pezzimenti forming part of the preliminary brief and served with the charge-sheet specified the drug as methylamphetamine.

In reply Mr Nunn submitted that the failure to specify the drug, and the other matters relied upon, meant that the charges were a ‘nullity’, not that they were ‘defective’.

Analysis

We have already addressed relevant issues concerning the interpretation and application of the CPA, in particular the power to amend under s 8(4). Important submissions put on behalf of Mr Nunn are inconsistent with our analysis. In particular, we have concluded that Glenister ought not be followed, and that the contention that an amendment which renders an ‘invalid’ charge ‘valid’ constitutes the commencement of a proceeding for a new offence is incorrect. We turn then to address the specific proposed grounds.

In relation to proposed ground 1(a), concerning the specification of times of driving and of taking the blood sample, in our opinion the submission of the first respondent is correct. Neither of those times are essential elements of either of the offences charged. Charge 2 (s 49(1)(i)) does contain the element that the sample be taken within three hours of driving. That element is specified in the charge.

In relation to proposed grounds 1 (b) and (c) concerning the power to require drivers to submit to testing procedures, we reject the contentions that, in relation to charge 2, all of the relevant matters addressed in s 55E need to be specified, and, in relation to charge 1, relevant ‘ordinary words’ concerning the power to require a driver to submit to a test must be set out in the charge. It is only the offence (by reason of cl 1(a) of sch 1) and the essential factual elements or ingredients of the offence (by reason of cl 1(b) of sch 1) which must be set out in the charge. The contentions of Mr Nunn in this context go well beyond what is essential.

The position here concerning specification of the relevant powers is not analogous to that addressed by this Court in Kypri. In Kypri, the Court was dealing with a charge under s 49(1)(e) of the RSA of having refused to furnish a sample of breath pursuant to a requirement to do so under s 55 of the RSA. The problem with the charge in that case was that there were different kinds of requirements under s 55 and the particular requirement in issue was not specified. In that context, a contrast between two different kinds of offences was emphasised. Nettle JA said this:

As the decision in Director of Public Prosecutions Reference No 2 of 2001 … makes clear, s 49(1)(f) creates but one offence (of having a blood alcohol concentration greater than the prescribed percentage) albeit that the offence may be committed in a number of different circumstances. Contrastingly, as was held by this court in Director of Public Prosecutions v Greelish, and reaffirmed in Clarke v Goodey, s 49(1)(e) creates as many different offences (of failing to comply with a requirement under s 55) as there are different kinds of requirements under s 55.
It being so, the proper characterisation of an act which comprises an offence under s 49(1)(e) is one of failure to comply with a particular kind of requirement under s 55. It follows that, in order to identify the act which comprises the offence, it is necessary to identify the particular kind of requirement under s 55 with which it is alleged that there was non-compliance. Hence, it is an essential element.[111]

[111]Kypri (2011) 33 VR 157, 162 [11]–[12] (citations omitted); [2011] VSCA 257.

Here, the charges are, respectively, driving with a prescribed concentration of drugs (s 49(1)(bb)), and having a concentration of a drug in a blood sample within three hours of driving (s 49(1)(i)). Neither of those provisions is analogous to s 49(1)(e) as addressed in the above passages. Rather, each is analogous to s 49(1)(f). That is, each creates but one offence. In particular, although s 49(1)(i) refers to various other sections within the RSA that can authorise the taking of a sample of blood, it does not create as many different offences as there are different kinds of authorisations under ss 55, 55B, 55BA, 55E or 56.

It may be accepted that, in order to prove the charge under s 49(1)(i), it may be necessary for the prosecution to prove facts concerning the circumstances in which the blood sample was taken. However, it does not follow that those circumstances were required to be included in the charge. As Charles JA said in Director of Public Prosecutions Reference No 2 of 2001, in relation to an offence under s 49(1)(f):

[A] fact which must therefore be established in the proof of an offence under s 49(1)(f) is that a motorist has been ‘required’ to furnish a sample of breath for analysis under s 53, having regard to what was said in Mills v Meeking, and the authorities previously quoted … above, and in particular the remarks of both Winneke P and Ormiston JA in DPP v Foster. But there are a number of facts which must be established as part of the proof of such an offence, such as for example that the instrument used was a breath analysing instrument within the meaning of the Act and that the person who operated the instrument was duly authorised to do so. Of course it does not follow that all such facts, necessary though they may be to proof of the offence under s 49(1)(f), must be alleged in the charge. In my view the essential elements of the offence under s 49(1)(f) are prescribed by the section itself and do not by direct or indirect reference incorporate any other allegation of fact necessary to exist in order to create the offence. In my view this court, indeed, decided to the contrary in Foster … It follows that while there must be evidence led as to the practical operation of ss 53 and 55 in circumstances of a prosecution under s 49(1)(f), as a necessary precondition of proof of the relevant offence, these matters do not constitute essential elements of the offence so as to require individual particularisation in the charge. I conclude, therefore, that the charge as drawn referred to each of the matters capable of identification as an essential element in a charge under s 49(1)(f), and was therefore neither defective nor a nullity.[112]

[112](2001) 4 VR 55, 63–4 [23] (emphasis added) (citations omitted).

The decisions in Woolworths and Kerr are of no real assistance in the present case. First, they must now be read in the light of Kypri and s 8 of the CPA. In any event, they concerned defects very different from those in issue here. In Kerr, the relevant charges had no date or time and one had no place.[113]
[113]Kerr [1992] 1 VR 43, 43.

In Woolworths it was impossible to tell from the charge itself which provision of the Labour and Industry Act 1958 (‘LIA’) was alleged to have been contravened; the charge referred only to the ‘Act’, not to any particular provision.[114] However, the informant in that case sought to rely on s 167 of the Magistrates (Summary Proceedings) Act 1975 which provided that the description of an offence in the words of the Act would be sufficient in law. The informant submitted that the charge had reproduced the words of s 98 of the LIA and that that was sufficient. Section 98 relevantly provided that ‘a shopkeeper … who fails or neglects to close his shop in accordance with this Part’ shall be guilty of an offence.[115] Thus, as Ormiston J explained, the offence in s 98 was ambulatory in operation, in that it referred to contraventions of provisions found elsewhere in the Act.[116] In that sense it was similar in character to s 49(1)(e) of the RSA, considered in Kypri. Ormiston J observed that s 167 could not be relied upon where the relevant provision potentially applied to a number of different offences.[117] As explained above, no such situation arises here.
[114]Woolworths (Supreme Court of Victoria, Ormiston J, 12 June 1986) 4.
[115]Ibid 5, quoting the LIA s 98(1).
[116]Woolworths (Supreme Court of Victoria, Ormiston J, 12 June 1986) 6.
[117]Ibid 15.

We also note that Ormiston J declined to amend the charge in Woolworths. That was because the limitation period had expired and his Honour considered that the particulars given at trial did not reveal the nature of the offence. In those circumstances he considered that it would have been unjust to amend in the particular circumstances of that case.[118] We do not consider that his Honour’s reasons shed any light on the application of s 8 in the present case.
[118]Ibid 18.

Proposed ground 2 is based upon the proposition that Ginnane J’s analysis in Glenister is correct and ought to have been followed by his Honour. For the reasons already given, we respectfully disagree. In our view, his Honour was correct in determining that these two charges could and should have been amended so as to include specification of the drug methylamphetamine.

In light of that conclusion, it is not necessary to consider the first respondent’s submission that the charge in this case was defective, but not ineffective, such that the Magistrate could have lawfully heard and determined the charge without amendment.

In relation to proposed ground 3, in our opinion charge 2 is not duplicitous. It clearly states in the first line of the charge that the relevant sample was taken within three hours ‘after driving’. The duplicitous nature of the charge is said to be constituted by the words ‘or being in charge of’ in the final passage of the charge which reads in full as follows:

[A]nd the presence of the drug in that sample was not due solely to the consumption or use of that drug after driving or being in charge of the motor vehicle.

The final passage reproduces the words of s 49(1)(i)(ii). In their context, the words are simply surplusage. His Honour was correct to conclude that they could not have misled a reasonable accused and an amendment to remove those words could be made under s 8(4) of the CPA.

Conclusion in Nunn

Mr Nunn’s application for leave to appeal is granted, but the appeal will be dismissed.

Conclusion

For the reasons stated above, in each case we would grant leave to appeal but dismiss the appeal.

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(2) A charge on a charge-sheet is not invalid by reason only of—

(a) omitting to state the time at which the offence was committed unless time is an essential element of the offence; or
(b) incorrectly stating the time at which the offence was committed; or
(c) stating the offence to have been committed on an impossible day or on a day that never happened.

[2022] VSCA 38

29 March 2022