Nunn v Pezzimenti - [2021] VSC 313

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 3322

ALLAN JOSEPH NUNN	Plaintiff
v
SENIOR CONSTABLE PETER PEZZIMENTI	First Defendant
and
THE MAGISTRATES’ COURT OF VICTORIA	Second Defendant

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JUDGE:	Beale J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2021
DATE OF JUDGMENT:	16 June 2021
CASE MAY BE CITED AS:	Nunn v Pezzimenti
MEDIUM NEUTRAL CITATION:	[2021] VSC 313	Second revision: 5 August 2021

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CRIMINAL LAW – Judicial review – Drug driving offences – Driving with prescribed concentration of drug in oral fluid – Within three hours of driving, providing a blood sample that tested positive for a drug – Drug not named in either charge – Whether particulars of both charges sufficient – Whether second charge invalid for duplicity because of inclusion of words ‘or in charge of’ – Magistrate found that both charges were valid but amended both charges by including the name of the drug (methylamphetamine) – Magistrate also amended second charge by deleting words ‘or in charge of’ – Whether Magistrate had power to amend charges after expiration of the limitation period – Road Safety Act 1986 (Vic), ss 3, 49(1)(bb), 49(1)(i), 55(1), 55D, 55E, 57 – Criminal Procedure Act 2009 (Vic), ss 6, 8, 9, Schedule 1 – Baiada Poultry Pty Ltd v Glenister (2015) 257 IR 204; [2015] VSCA 344 – DPP v Fox [2021] VSC 226 – DPP Reference No 2 of 2001 (2001) 4 VR 55; [2001] VSCA 114 – John L Pty Ltd v Attorney-General (NSW) [1987] 163 CLR 508 – Johnson v Miller [1937] CLR 467 – Southgate Management Pty Ltd v Nitschke [2018] VSC 236 – Wells v Stillman & Anor [2020] VSC 51.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W Walsh-Buckley	Ondrik Larsen Lawyers
For the First Defendant	Ms E Ruddle SC	Office of Public Prosecutions
For the Second Defendant	No appearance	No appearance

HIS HONOUR:

BACKGROUND

The issues in this case are whether the original drug driving charges against the plaintiff were valid and, if not, whether they were capable of amendment after the expiration of the limitation period.
Circumstances of alleged offences
The circumstances of the alleged offences are described in the police summary as follows:
On Wednesday 12 December 2018, at approximately 11.30 am, the accused was the driver of a motor vehicle being a white International Prime Mover, with registration PVW 553, with a single trailer attached, when he was observed to be travelling north on Northern Highway, Kilmore, by Leading Senior Constable PEZZIMENTI and Senior Constable RHEAD.
The accused was intercepted by Leading Senior Constable PEZZIMENTI. He produced his Victorian driver licence, in the name of Allan NUNN…This licence displayed an expiry date of 25 July 2019. The identity of the accused was confirmed by Leading Senior Constable PEZZIMENTI by a photograph check of the accused Victorian driver licence.
Leading Senior Constable PEZZIMENTI then conducted a preliminary breath test on the accused by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nunn v Pezzimenti

Details

AGLC: Nunn v Pezzimenti [2021] VSC 313
Case: [2021] VSC 313
Decision Date: 16 June 2021

CaseChat Overview and Summary

The matter of Nunn v Pezzimenti was before the Court, where the appellant challenged the validity of two drug driving charges brought against him. The appellant was charged with driving a motor vehicle with a prescribed concentration of methylamphetamine in his oral fluid and with providing a blood sample within three hours of driving that tested positive for a drug, though the drug was not named in either charge. The appellant argued that the charges were insufficient and that the inclusion of the words ‘or in charge of’ in the second charge constituted duplicity. The magistrate found the charges to be valid but amended them by including the name of the drug, methylamphetamine, and by deleting the words ‘or in charge of’ from the second charge. The appellant contended that the magistrate lacked the power to amend the charges after the limitation period had expired.

The primary legal issues before the Court were whether the particulars of the charges were sufficient and whether the second charge was invalid due to duplicity. Additionally, the Court needed to determine whether the magistrate had the authority to amend the charges after the expiration of the limitation period. The Court considered relevant statutory provisions and case law to address these issues. The Court held that the particulars of both charges were sufficient as they contained all the elements of the respective offences. Furthermore, the Court found that the words ‘or in charge of’ did not render the second charge duplicitous. Finally, the Court concluded that the magistrate had the power to amend the charges after the limitation period had expired, as the amendments were made to correct defects in the charges and did not alter the substance of the offences.

The Court found in favour of the respondent, holding that the charges were valid and that the magistrate had the power to amend them after the limitation period had expired. The Court's decision was based on a thorough analysis of the relevant statutory provisions and case law, which demonstrated that the particulars of the charges were sufficient and that the inclusion of the words ‘or in charge of’ did not render the second charge duplicitous. Additionally, the Court found that the magistrate's amendments were permissible as they were made to correct defects in the charges and did not alter the substance of the offences. The Court dismissed the appeal and upheld the convictions.

The Court ordered that the appeal be dismissed and that the convictions be upheld. The Court also confirmed that the magistrate had the power to amend the charges after the limitation period had expired, as the amendments were made to correct defects in the charges and did not alter the substance of the offences. The Court's decision provides clarity on the validity of drug driving charges and the power of a magistrate to amend charges after the limitation period has expired.

Orders