Nunn v Pezzimenti

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 means of a Lion Alcolmeter SD-400 Touch, a prescribed device pursuant to the Road Safety General Regulations. As a result of the preliminary breath test Leading Senior Constable PEZZIMENTI formed the opinion that alcohol was not present in the accused's breath.
Leading Senior Constable PEZZIMENTI informed the accused that he was required to undergo a preliminary oral fluid test pursuant to section 55(1) of the Road Safety Act 1986 by means of a SECURETEC DRUGWIPE II TWIN, a prescribed device pursuant to the Road Safety (General) Regulations 2009.
As a result of the preliminary oral fluid test Leading Senior Constable PEZZIMENTI formed the opinion that there was a prescribed illicit drug in the accused's oral fluid and required the accused to remain at the roadside for the purpose of an oral fluid test, pursuant to section 55E of the Road Safety Act 1986.
The accused remained with Leading Senior Constable PEZZIMENTI at the roadside. Leading Senior Constable PEZZIMENTI required the accused to undergo an oral fluid test pursuant to section 55E of the Road Safety Act 1986
The accused was unable to provide a sufficient sample of oral fluid. Leading Senior Constable PEZZIMENTI then required the accused to allow an approved health professional to take a sample of blood for analysis pursuant to Section 55E(13) of the Road Safety Act 1986. The accused then agreed to accompany police to the Kilmore Hospital for the purpose of providing a sample of blood for analysis.
At 12.55 pm on Wednesday 12 December 2018 the accused provided a sample of their (sic) blood for testing and analysis. The approved health professional then completed and signed a prescribed Certificate of the Taking of a Blood Sample. One sample was handed to the accused. The Certificate of the taking of a Blood Sample complied with the requirements of the Road Safety (General) Regulations 2009. The presence of the drug in that sample was not due solely to the consumption or use of that drug after driving the vehicle.
The police sample was conveyed by RPDAS Courier to the Victorian Institute of Forensic Medicine for independent laboratory analysis, the result of which confirmed the presence of methylamphetamine, a prescribed illicit drug for the purpose of Section 55E of the Road Safety Act 1986.
…
The accused denied taking any drugs during …interview.
The charges
The charges, pursuant to ss 49(1)(bb) and 49(1)(i) of the Road Safety Act 1986, were originally in the following terms:
Charge 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.
Charge 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 section 55E and the sample having been analysed by a properly qualified analyst within the meaning of section 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.
Procedural history
Magistrates’ Court hearing
On 1 July 2020, the plaintiff appeared under protest at a preliminary hearing at Shepparton Magistrates’ Court, submitting that the charges were invalid and could not be lawfully amended under s 8 of the Criminal Procedure Act 2009 (Vic).
The learned Magistrate ruled that both charges were valid but amended both by the insertion of the name of the alleged drug (methylamphetamine) and by the deletion of the words ‘or in charge of’ from Charge 2.
The case did not proceed to hearing as the plaintiff indicated that he wished to review the Magistrate’s decisions regarding the validity of the charges and the amendments.
Originating Motion
By Originating Motion dated 17 August 2020, the plaintiff sought an order in the nature of certiorari quashing the Magistrate’s finding that the charges were valid.
He also sought orders in the nature of mandamus compelling the Magistrate to find that the charges were invalid, could not be lawfully amended, and to strike out both charges.
Grounds
The plaintiff relied on the following grounds:
1. The Magistrates Court of Victoria committed error of law on the face of the record when the Court sitting at Shepparton on 1 July 2020 (and supplying written reasons on 14 July 2020) ruled that charges laid by the informant under the Criminal Procedure Act 2009 (Vic) for offences under ss 49(1)(bb) and (i) of the Road Safety Act 1986 were not invalid, did comply with the mandatory provisions on contents of charge sheets under the common law and s 6(3) read with Sch 1 Cl 1-3 of the Criminal Procedure Act and could be amended under s 8.
2. Specifically, in relation to charge 2, the offence against s 49(1)(i) of the Road Safety Act, the Court erred in finding that the charge was not duplex and not ambiguous in identifying the precise offence alleged.
3. In relation to both charges, the offences under ss 49(1)(bb) and (i) of the Road Safety Act, the Court erred in finding that there was reasonable information as to the nature of the offences alleged contained in the charge sheets and that they complied with the common law and s 6(3) read with Sch 1 Cl 1-3 of the Criminal Procedure Act.
4. In relation to both charges, the offences under ss 49(1)(bb) and (i) of the Road Safety Act, the Court erred in finding that they could be amended under s 8 of the Criminal Procedure Act to include the description of the drug in the charge sheets.
Statutory framework
Road Safety Act 1986
The statutory framework under the Road Safety Act 1986 is as follows:
3      Definitions
(1)     In this Act—
…
drug means a substance that is a drug for the purposes of this Act by virtue of a declaration under subsection (3) or any other substance (other than alcohol) which, when consumed or used by a person, deprives that person (temporarily or permanently) of any of his or her normal mental or physical faculties;
…
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-NMethylamphetamine (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.
…
57     Evidentiary provisions—blood tests
(1)     In this section—
(a)properly qualified analyst means —
(i)an approved analyst; or
(ia)a person who carries out an analysis in an approved laboratory; or
(ii)a person who is considered by the presiding judge, a coroner, or the Magistrates' Court to have scientific qualifications, training and experience that qualifies him or her to carry out the analysis and to express an opinion as to the facts and matters contained in a certificate under subsection (4) or (4A), as the case requires; and
Criminal Procedure Act 2009 (Vic)
The relevant statutory framework under the Criminal Procedure Act 2009 (Vic) is as follows:
6      Commencement of a criminal proceeding in the Magistrates' Court
(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.
…
7      Time limits for filing a charge-sheet
(1)     A proceeding for a summary offence must be commenced within 12 months after the date on which the offence is alleged to have been committed except where—
(a)otherwise provided by or under any other Act; or
(b)the accused gives written consent, and the DPP or a Crown Prosecutor consent, to the proceeding being commenced after the expiry of that period.
…
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.
9      Errors etc. in charge-sheet
(1) A charge-sheet is not invalid by reason only of a failure to comply with Schedule 1.
(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.
…
Schedule 1 – Charges on a charge-sheet or indictment
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.
2      Statement of particulars
(1)     Subject to subclause (2), particulars of the offence charged must be set out in ordinary language and the use of technical terms is not necessary.
(2)     If a rule of law or a statute limits the particulars that are required to be given in a charge, nothing in this clause requires any more particulars than those required.
3      Statutory offence
(1)     In this clause—
statutory offence means an offence created by an Act or subordinate instrument, or by a provision of an Act or subordinate instrument.
(2)     For the purposes of clause 1(a), a statement of a statutory offence is sufficient if it—
(a)identifies the provision creating the offence; and
(b)describes the offence in the words of the provision creating it, or in similar words.
(3)     If a statutory offence states—
(a)the offence to be committed in alternative ways; or
(b)any element or part of the offence in the alternative—
a charge may state the commission of the offence or the element or part of the offence in the alternative
…
7      Descriptions generally
Subject to any other provision of this Schedule, if it is necessary to describe anything in a charge, it is sufficient to describe the thing in ordinary language in a manner that indicates with reasonable clarity the thing referred to.
SUBMISSIONS
Plaintiff
The plaintiff submitted that the relevant provisions of the Criminal Procedure Act 2009 (Vic) have altered the law to require greater specificity in the particulars of a valid charge.
Reasonable information
The plaintiff submitted that both charges were invalid because of the omission of ‘reasonable information as to the nature of the charges’, contrary to cl 1(b) of the First Schedule.
The plaintiff submitted each charge should have included specific times[1] (not just dates), specific places (the road in Kilmore where the plaintiff was driving), the source of the police officer’s power to require the plaintiff to take the oral fluid tests and give a blood sample (beginning with the fact that the plaintiff was found driving), the name of the drug found in the blood sample (methylamphetamine) and the level of concentration of the drug allegedly detected in the plaintiff’s system or sample.
[1]The time of the driving in both charges and the time of the taking of the blood sample in Charge 2.
In relation to the failure of the charges to name the alleged drug — which the plaintiff described as a “spectacular” omission — the plaintiff relied on Southgate Management Pty Ltd v Nitschke[2] (‘Southgate’).In that case, customers of the Langham Hotel in Melbourne fell ill, allegedly from food poisoning. Southgate, which managed the Langham, was prosecuted under the Food Act 1984 (Vic). The charges included charges of handling food intended for sale in an unsafe manner. The charges named the food as egg mayonnaise and cocktail sauce. Southgate submitted unsuccessfully, both before the magistrate and before Priest JA on review, that the charges needed to be even more specific about the food.[3] The plaintiff in the present case submitted that had the food not been named in the charges in that case, Priest JA would have found them invalid. I note that whilst Priest JA did not expressly say as much in his judgment, it is not an unreasonable submission, given the many types of food supplied by the Langham to its customers.
[2][2018] VSC 236.
[3]Priest JA said this at [24] and [71] of Southgate:
Southgate submits that these charges insufficiently identify:
•     the subject of the charge — ‘egg mayonnaise’ — in circumstances where Southgate operates multiple kitchens that produce litres of mayonnaise daily, with any number of food items containing mayonnaise;
•     whether the same mayonnaise was the subject of each charge; and
•     what is alleged to have been unsafe about the mayonnaise.
…
Southgate knows that the allegation is in each case that it breached s 11(1) of the Act by handling egg mayonnaise or cocktail sauce that was intended for sale in a manner that rendered it, or was likely to render it, unsafe (as that term is defined in the Act). That said, upon request, it is clear that Southgate would be entitled to further particulars of how it is alleged to have handled the relevant food — food being capable of being handled for the purposes of the Act in a wide variety of ways — and of the manner in which the handling rendered (or was likely to render) the food unsafe. Furthermore, given the nature of the hotel’s operations, Southgate would be entitled to identification of the particular food which is the subject of the charge (beyond its description in the charge as ‘egg mayonnaise’ or ‘cocktail sauce’). The fact that further particulars would need to be provided should a request for them be made does not, however, render the charges invalid.

The plaintiff also relied on Wells v Stillman & Anor[4] (‘Wells’) in relation to the failure of the charges in the present case to name the alleged drug. In Wells, a police officer was charged with wrongfully accessing ‘police information’, contrary to s 227(1) of the Victoria Police Act 2013 (Vic). The charge did not particularise the relevant ‘police information’ at all, which Quigley J found rendered the charge invalid, having regard, amongst other things, to the fact that police officers access police information all the time in the proper performance of their duties.[5]
Duplicity
[4][2020] VSC 51.
[5]Quigley J said this at [61] of Wells:
Under the VPA the definition of ‘police information’ is very broad. There is little doubt that in a police officer’s day to day activities he or she would be accessing a wide range of ‘police information’ in accordance with the definition in s 225. A police officer would be accessing police information continuously as part of his or her daily duties.
In relation to Charge 2 alone, the plaintiff submitted that the inclusion of the words ‘or in charge of’, in addition to the word ‘driving’ was confusing and invalidated the charge for duplicity. A charge of providing a positive blood sample within three hours of driving is a different offence to providing a positive blood sample within three hours of being in charge of a motor vehicle.
Amendment
The plaintiff submitted that the Magistrate’s order permitting amendments to both Charges 1 and 2 contravened s 8 of the Criminal Procedure Act 2009 (Vic) given that more than 12 months had passed since the alleged offending. The original charges did not sufficiently disclose the nature of the offences (s 8(4)(a)) and the amended charges impermissibly charged new offences outside the limitation period (s 8(3)).
Defendant
Reasonable information
The defendant submitted that the law in relation to particulars has not been altered by the Criminal Procedure Act 2009 (Vic). What is reasonable information is to be understood in the light of the common law (Baiada Poultry Pty Ltd v Glenister[6]), which did not require the specifics that the plaintiff submitted should have been included as particulars in each charge. Each of the charges provided reasonable information as to the nature of the charge. As to time, each charge specified the date; alternatively, s 9 of the Criminal Procedure Act 2009 (Vic) applied. The plaintiff’s submission as to time was also at odds with DPP v Fox,[7] a speeding case where it was decided that the time of day was not required to be stated in the charge. As to place, each charge indicated the locality (Kilmore). As to the source of the police officer’s power to require the plaintiff to undergo tests and give a blood sample, this was not an element of the offence: rather, the defendant submitted that it went to the admissibility of the incriminating blood sample analysis and therefore did not have to be included in the charges. As to the name of the drug, ‘the specific offence[s] only require a reference to a “prescribed drug”, which is what is alleged.’[8] The defendant sought to distinguish both Southgate and Wells on the basis that the subject of those charges — ‘food’ and ‘police information’ — was broad whereas the subject matter of the present charges was limited to three illicit drugs (methylamphetamine, MDMA and delta-9- tetrahydrocannabinol), by virtue of the definitions in the Road Safety Act 1986 (Vic) of prescribed concentration of drugs (Charge 1) and prescribed illicit drug (Charge 2). As to the concentration of the drug, the definition of ‘prescribed concentration of drugs’ indicates that any concentration of the drug suffices.
Duplicity
[6](2015) 257 IR 204; [2015] VSCA 344 (‘Baiada’).
[7]DPP v Fox [2021] VSC 226.
[8]Nunn v Pezzimenti (S ECI 2020 03322) – E-Court Book, 120.
The defendant submitted that the inclusion of the words ‘or in charge of’ in Charge 2 did not render the charge duplicitous or confusing. Given the reference to driving in the first line of the charge, the charge was clearly directed at driving, not both ‘driving’ and ‘being in charge of’.
Amendment
The amendments did not amount to the commencement of proceedings for new offences, nor did they take the plaintiff by surprise, as he had been on notice from the commencement of proceedings, by reason of prosecution disclosure, of the case he had to meet. Consequently, the amendments were permissible under s 8(4) of the Criminal Procedure Act 2009 (Vic).
ANALYSIS
Reasonable information
As I indicated recently in DPP v Fox,[9] the change to the law of particulars effected by the Criminal Procedure Act 2009 (Vic) was a change in form, not substance. What is reasonable information as to the nature of the charges is to be understood by reference to the common law in relation to particulars.
[9][2021] VSC 226 at [28] to [31].
In Baiada,[10] Ferguson and McLeish JJA said this:
The issue for determination is whether that charge is valid. The Criminal Procedure Act 2009 … 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[11] of the offence, in addition to its legal nature, must be identified in the charge.
[10](2015) 257 IR 204; [2015] VSCA 344, [5].
[11]See also John L Pty Ltd v Attorney-General (NSW) [1987] 163 CLR 508, 520.
The last sentence of this passage should not be misunderstood. It is clear from cases like DPP Reference No 2 of 2001[12] that not every element of an offence must be particularised in a charge. In that case, the Court of Appeal rejected a submission that it was necessary for a charge laid under s 49(1)(f) of the Road Safety Act 1986 to refer to the driver having undergone a preliminary breath test under s 53, even though that was a matter which the prosecution had to prove.[13] The references in cases like Baiada and John L Pty Ltd v Attorney-General (NSW)[14] to the essential factual elements or ingredients of an offence should be understood as a reference to those elements which must be particularised in a charge. Regrettably, as John L Pty Ltd confirmed, there is no “technical verbal formula”[15] for readily determining which elements are “essential” in this sense.[16] In some cases, the wording of the section creating the relevant offence may assist in drawing the distinction, as it did in DPP Reference No 2 of 2001.
Time of offence
[12](2001) 4 VR 55; [2001] VSCA 114.
[13]Ibid, 64 [23]. See also 66 [30].
[14][1987] 163 CLR 508, 520.
[15]John L Pty Ltd v Attorney-General (NSW) [1987] 163 CLR 508, 520.
[16]By definition, all elements of an offence are essential ingredients of that offence but a particular element may not be essential in the sense that it needs to be particularised in the charge.
As to time, each charge stated the date of the offence. That was sufficient. In Johnson v Miller,[17] Dixon J spoke of the necessity of specifying ‘the time, place and manner of the defendant’s act or omissions’ but, as I explained in DPP v Fox,[18] that has not been understood as creating a general rule that the particulars of a charge must include the time of day of the offence. It was not an element of either offence that that the accused was driving at a particular time of day. Nor was it an element of either offence that the blood sample was taken at a particular time of day. The fact that the prosecution had to prove the taking of the blood sample within three hours of driving did not transform the time of driving or the time of the taking of the blood sample into elements which needed to be particularised in the charge. The precise time of the driving and the taking of the blood sample were matters that could properly be the subject of a request for further and better particulars, but their omission from the charges did not invalidate the charges.
Place of offence
[17]Johnson v Miller [1937] CLR 467, 486.
[18][2021] VSC 226.
As to place, Charge 1 referred to Kilmore, the locality where the plaintiff was allegedly driving, and Charge 2 referred to Kilmore Hospital, the place where the blood sample was taken from the plaintiff. Dixon J’s reference in Johnson v Miller to ‘place’ as a necessary particular has also long been understood as, in general, requiring no more than the specification of the locality. The nature of the offences in this case did not require greater specificity than what is generally required. Had Charge 2 merely referred to Kilmore, that would have sufficed.
Source of police power
As to the source of police power, I do not accept the plaintiff’s submission that each charge needed to refer to the circumstances which empowered the police to require the plaintiff to provide a blood sample — that is, the circumstances that he was found driving which empowered police to require him to undergo a preliminary oral fluid test, the result of which was positive, which empowered police to require him to undergo an oral sample for testing, the failure to provide which empowered the police to require the blood sample. As I have indicated at [27] above, it does not follow that because the prosecution must prove a particular matter — such as the source of a police power — that it must be particularised in the charge.
Name of drug
I turn now to the omission from each charge of the name of the drug.
It will be recalled that the Court of Appeal in Baiada said that if a charge is to contain reasonable information, ‘the essential factual elements of the offence, in addition to its legal nature, must be identified in the charge.’
Applying Baiada, it seems to me self-evident that naming the alleged drug in each charge was required, given the wording of ss 49(1)(bb) and 49(1)(i) and the fact that the presence of one of three possible drugs in the plaintiff’s system or sample at the relevant time is central to each offence. The fact that the definitions of ‘prescribed concentration of drugs’ and ‘prescribed illicit drugs’ in the Road Safety Act 1986 (Vic) narrow the field to three drugs is hardly the identification in the charge of the essential factual elements of the offence. In my view, the charges were invalid by reason of the failure to name the drug.
Concentration of drug
As to the concentration of the drug, it mattered not whether the level of concentration was high or low. Any concentration sufficed for methylamphetamine. The fact that the level of concentration might, as was submitted by the plaintiff, make a difference to the sentence is beside the point. The level of concentration did not need to be identified in either charge.
Duplicity
Charge 2 was not invalid for duplicity because of the inclusion of the words ‘or being in charge of’ in the last line of the charge. The meaning conveyed by a charge is to considered from the perspective of a reasonable accused.[19] The fact that in the opening line the charge refers to a sample of blood taken within 3 hours after “driving” would make it clear to a reasonable accused that the prosecution relied on the accused’s driving. The inclusion in the last line of the charge of the phrase ‘after driving or being in charge of’ would not mislead a reasonable accused into thinking that the prosecution was not relying on his driving. The reference again to ‘driving’ in the last line would, for a reasonable accused, confirm the meaning conveyed by the first line of the charge. A reasonable accused would read the charge as a whole.
[19](2001) 4 VR 55, 68 [40]; [2001] VSCA 114, [40].
Amendment
Name of drug
As Robson AJA stated in Baiada, ‘an invalid charge should be quashed by the Court unless validly amended;’.[20]
[20](2015) 257 IR 204; [2015] VSCA 344, [157(f)].
The learned Magistrate amended both charges to insert the name of the alleged drug. Did the Magistrate have the power to do so?
The power to amend is more circumscribed where the limitation period has expired. Section 8(4) stipulates three preconditions.
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’.[21] 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.
[21]This distinction is reflected in cls 1(a) and 1(b) of the First Schedule.
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.[22] The amendment to the charges naming the drug confirmed what the plaintiff already knew. There was no injustice occasioned by the amendment.
Deletion from Charge 2
[22]Nunn v Pezzimenti (S ECI 2020 03322) – E-Court Book, 79, 122.
The amendment to Charge 2 to delete the words ‘or in charge of’ simply removed unnecessary words. It was well within the power of amendment granted by s 8(4): the charge sheet already sufficiently disclosed the nature of the offence, the amendment did not commence a proceeding for a new offence, nor did it cause any injustice to the plaintiff.
ORDERS
By reason of the failure of the charges before amendment to name the drug in question, I make an order in the nature of certiorari quashing the Magistrates’ decision that the original charges were valid. But because the Magistrate validly amended the charges to include the name of the drug, I decline to make the other orders sought by the plaintiff. I will hear the parties as to costs.

[2021] VSC 313

16 June 2021