Police v Weeks
[2020] VMC 23
•20th October 2020
IN THE MAGISTRATES’ COURT OF VICTORIA
AT DANDENONG
Case No. K127479321
| Sergeant Travis Cusack 34716 | Informant |
| v | |
| Micah Weeks | Accused |
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MAGISTRATE: | A.G. BURNS |
WHERE HELD: | DANDENONG MAGISTRATES COURT (Via OMC) |
DATE OF HEARING: | 12th October 2020 |
DATE OF DECISION: | 20th October 2020 |
CASE MAY BE CITED AS: | Police v Weeks |
MEDIUM NEUTRAL CITATION: | [2020] VMC 023 |
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CATCHWORDS – Criminal law – Sufficiency of charge particulars – Whether charges contain particulars necessary to give accused reasonable information as to the nature of the charge and are set out in ordinary language under sch 1(b) and (2) and (3) of Criminal Procedure Act 2009 (Vic) - Jurisdiction – Ability to amend – Sch 1 Criminal Procedure Act – Section 9 Criminal Procedure Act – Exceed speed – Road Rule 20 - Road Rules Victoria
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APPEARANCES: | Counsel | Solicitors |
For the Informant | Senior Constable Jones | Victoria Police |
For the Accused | Mr W. Walsh-Buckley | Meldrum & Hyland’s List |
INTERLOCUTORY RULING
His Honour
OVERVIEW
Mr Weeks is charged with a single count of speeding contrary to RR 20 of the Road Rules Victoria. The allegation is that he was detected by the Informant using moving mode radar in Berwick whilst driving his vehicle at a detected speed of 130 kph (Speed alleged 128kph) on the 2nd of October 2019 in a 70 kph speed zone.
The matter is being contested and was set down for hearing via the online portal of the Magistrates Court on 12th October 2020. Whilst a statement of agreed facts had been signed by Mr Walsh-Buckley who appears for the accused, this had occurred on the 4th of February 2020 at a time before the Supreme Court handed down its decision in Wells v Stillman & Anor [2020] VSC 51 (19th February 2020) per Quigley J (“Wells v Stillman”). If it was needed, I gave leave to depart from the agreed facts to argue the jurisdictional point, given the potential for what was submitted to be new and binding authority to affect my decision.
Wells v Stillman, in Mr Walsh-Buckley’s submissions, enlivened a jurisdictional issue that he sought to ventilate. The issue was whether insufficient particulars in the single charge faced by his client meant the charge did not comply with Schedule 1 of the Criminal Procedure Act (“the CPA”). In those circumstances, Mr Walsh-Buckley submits the charge must be struck out and in the circumstances of the statute of limitations now having passed, it could not be re-filed. Indeed, in his submission, the charge could not be amended, given the invalid charge as he submits it to be, never properly existed and therefore never founded the jurisdiction of the Court. Accordingly, he submits that with no charge properly commenced and the statute of limitations for the filing of such a charge now expired, the prosecution is fatally flawed.
The prosecutor Senior Constable Jones replied to Mr Walsh-Buckley’s submission, that the charge did contain sufficient particulars and he relied upon section 9 of the CPA to submit that a charge is not invalid only on the ground that it does not comply with Schedule 1 of the CPA. He further submitted that if it did not contain sufficient particulars to be valid, it could be amended even outside the statute of limitations.
THE CHARGE AND SUBMISSIONS
The charge filed against Mr Weeks with the Dandenong Court on 19/10/19 is in the following terms:
The Accused at Berwick on 2/10/2019, being the driver of a vehicle, other than a heavy vehicle, on a length of road namely, Princes Highway between Manuka Road and Beaconsfield Emerald Road, did drive at a speed which exceeded a speed-limit sign of 70 kilometres per hour, which applied to the accused for the length of road on which the accused was driving, 45 kilometres per hour or more. Detected speed 130 km/h. Alleged speed 128 km/h.
Mr Walsh-Buckley submits that the charge is invalid for failure to give sufficient particulars to reasonably inform the accused for him to properly understand the case against him. He submits that it is therefore invalid for failing to comply with Schedule 1 of the CPA. Specifically, Mr Walsh-Buckley submits the charge is deficient in three ways.
iThe charge does not include the time of day at which the speed was alleged to have occurred.
iiThe charge refers to a ‘vehicle, other than a heavy vehicle’ driven by the accused but fails to properly particularise the specific type of vehicle.
iiiThe charge does not particularise a specific location, indicating that Berwick, ‘on a length of road namely Princes Highway between Manuka Road and Beaconsfield Emerald Road’ was insufficient for the Accused to understand the location at which his speed was checked.
In support of these submissions, Mr Walsh-Buckley relies upon a recent decision of Justice Quigley in Wells v Stillman[1]. In that case her Honour considers a number of cases including the Court of Appeal decision including Baiada Poultry Pty Ltd v Victorian Workcover Authority[2], decisions of the High Court of Australia John L Pty Ltd v Attorney-General (NSW)[3] Kirk v Industrial Relations Commission (NSW)[4] and discusses the Victorian Supreme Court’s Decision in Southgate Management Ltd v Nitschke[5]. Her Honour then struck out the charge for having insufficient particulars.
[1] [2020] VSC 51 (19th February 2020) per Quigley J
[2] [2015] VSCA 344
[3] [1987] HCA 42; (1987)163 CLR 508
[4] [2010] HCA 1; (2010) 239 CLR 531
[5] (2018) VSC 236
ANALYSIS
In Wells v Stillman, Her Honour was dealing with an appeal against a Magistrates decision to strike out a charge for want of particulars. In the substantive matter IBAC had filed a charge against a serving police officer in relation to alleged unlawful access of police information by him. On 19 March 2018, a charge was filed against the accused Wells alleging that contrary to s 227(1) of the Victoria Police Act 2013(Vic)
The accused at Victoria on 20 March 2017, being a member of Victoria Police, without reasonable excuse, accessed police information contrary to his duty not to access the information
The Court then stated the principles as set down in the High Court in Kirk v Industrial Relations Commission (NSW) (‘Kirk’) and more recently stated to the same effect by the Victorian Court of Appeal in Baiada Poultry Pty Ltd v Victorian WorkCover Authority (‘Baiada’).[8] That is, for a criminal charge to be valid it must include not only the legal elements of the charge but also the essential factual ingredients of the alleged misconduct.
10.Her Honour sets out at paragraph17 that in Victoria, the CPA now sets out what is required in the content of a criminal charge. Criminal proceedings in this State are commenced by filing a charge sheet,[13] which must – amongst other things – comply with Sch 1 of the CPA.[14] Schedule 1 relevantly provides:
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.
...
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.
11.The Court in Wells v Stillman at paragraph 20 and 21 referred to what the Victorian Court of Appeal had said in Baiada Poultry and stated as follows
Whilst the requirement for particulars to be included in a charge is now on a statutory footing, as explained by Ferguson and McLeish JJA in Baiada, the requirements of the CPA, 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.
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...
Her Honour in Wells v Stillmen then summarised at paragraph 57, without quoting directly from that case on this point, her analysis of what the Court in Baiada had said-
In Baiada, the Court of Appeal said although cl 1(b) of sch 1 of the CPA has much in common with the approach of the common law, it has nonetheless affected the common law in that it supplies a statutory test for determining the adequacy of the particulars furnished as part of the charge. In their judgment, Ferguson and McLeish JJA quoted a series of expressions from the common law cases which illustrated the information that is required for a valid charge, including the following:
(a) specifying the time, place and manner of the defendant’s acts or omissions;
(b) whatever is necessary to show that the person convicted has done something which brought him within the words of the statute;
(c) the nature of the offence and the manner in which it has been committed; and
(d) the essential factual ingredients of the offence.
The Court in Baiada canvassed amongst other cases Johnson v Miller[6], where Dixon J considered that an information must specify ‘the time, place and manner of the defendant’s acts or omissions’. McTiernan J in that case, however only referred to the requirements of ‘fair information and reasonable particularity as to the nature of the offence charged’.
[6] [1937] HCA 77; (1937) 59 CLR 467
The Court in Baiada at paragraph 157, then summarised the authorities examined to establish the following relevant principles, under the heading : Summary of Applicable principles
(a) at common law, the traditional function of the charge was to found the jurisdiction of the court to deal with the alleged offence;
(b) in more recent times, the charge is also to inform the defendant of the substance of the offence which he is called on to meet;
(c) schedule 1 of the CPA that specifies what a charge must state does not obviate the common law requirements as to a valid charge;
(d) a valid charge must specify all the elements of the offence that the defendant is alleged to have committed;
(e) the charge must specify the facts relied on to make out the legal elements of the charged offence, including the particular facts, matters or things alleged as the foundation of the charge;
(f) an invalid charge should be quashed by the Court unless validly amended;
(g) information on how the case is to be proved is not required to be included in the charge, but the facts matters or things to be proved must be included in the charge; and
(h) under s 26(1) of the OH&S Act an essential element of the charge is to allege the means by which it is alleged it was reasonably practicable for the defendant to what do it is alleged he failed to do.
Interestingly, in that list (a) to (h) as set out in Baiada, the Court does not indicate that the recitation of ‘time’ is essential to validate a charge. Whilst ‘time’ is discussed in the cases canvassed, it does not find its way into that Court’s ‘Summary of Applicable principles’.
The high point for the inclusion of time as an essential element of a criminal charge, seems to be Johnson v Miller as referred to above, a decision of the High Court of Australia in 1937. Importantly however, the case before the court in Johnson v Miller had a time dependant element to it. Johnson v Miller was a case in which the statute in question provided that a licensee of licensed premises would be liable to a penalty if a person was present on the premises during certain prohibited hours, unless the licensee could establish one of the justifications or excuses relating to that person's presence provided for in the statute. Dixon J observed that each of the justifications depended upon some feature pertaining to the person found in, or seen leaving, the premises and that no licensee could succeed in bringing the case within any of the grounds of excuse unless the person or persons were identified and their presence on a distinct occasion alleged. Accordingly, in that case ‘time’ was a critical feature, necessary for the accused to have the reasonable information required to understand the charge.
The High Court of Australia in Kirk v the Industrial relations Commission, dealt with an occupational health and safety case arising in NSW. The Court at paragraph 26 said the following:-
The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v Attorney-General (NSW), it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, "must at the least condescend to identifying the essential factual ingredients of the actual offence"
It was not argued in Kirk, that time was an essential element of a charge and save for canvassing Johnson v Miller, the Court did not deal with ‘time’ as an element of a charge in any way.
Similarly the Court in John L Pty Ltd v Attorney-General (NSW), dealing with a charge for using misleading particulars under consumer protection legislation, does not deal in any way with ‘time’ being an essential ingredient of a charge as it was not argued before it.
Indeed, a failure to include ‘time’ in the charge as invalidating it, was in fact not argued before Justice Quigley in Wells v Stillmen, Accordingly, any reference she makes to it in paragraph 57 of that case is entirely obiter.
Also discussed by the Court in Jones v Stillman was the Supreme Court’s decision in Southgate Management[7] where the Court was asked to invalidate a charge filed pursuant to section 11of the Food Act 1984 for want of sufficient particularisation. In that case, Priest JA found that the charges as articulated were sufficient to inform Southgate Management as to the legal nature of the relevant offences together with their essential factual elements. This was so because in each case the accused was aware that the prosecution alleged it breached s.11(1) by handling egg mayonnaise intended for sale in a manner that renders it or was likely to render it ‘unsafe’(as that term is defined in the Food Act 1984 (Vic)). The terms of the charge on the charge sheet pursuant to s 11(1) were as follows:
On or about [date] you, at [the hotel] handled food, namely egg mayonnaise, intended for sale in a manner that rendered, or was likely to render, the food unsafe in contravention of s 11(1) of the Act.
[7] Ibid at 5
The charge did not specify how the mayonnaise was handled, how or in what way the mayonnaise was unsafe, or what specific mayonnaise the charge related to. His Honour observed that upon request, Southgate Management would be entitled to further particulars of how it is alleged to have handled the particular food but his His Honour found that the fact that further particulars were needed to be provided, should a request be made for them, did not however render the charges invalid.[8]
[8] Southgate Management (2018) VSC 236 at paragraph 78
Justice Quigley in Wells v Stillman ultimately struck out the charge as invalid for failing to give sufficient information as to what the policeman’s duty was, how it was breached and what particular ‘police information’ had been obtained in an unauthorised way. Despite finding the charge was invalid, she noted the following at paragraph 23-
The requirement for sufficient particulars does not go so far as requiring the charge to contain all such material as a defendant may require upon application for particulars for the preparation of the defence. What is necessary are sufficient particulars to make it clear what was the act or omission alleged to constitute the offence. Thus, in Baiada, the majority identified that more precise information about what the defendant allegedly should have done to ensure the processing line was not operating and prevent contact with it, needed to be known well before a trial notwithstanding the validity of the charge. Ferguson and McLeish JJA concluded: That can and should be done through the provision of further and better particulars. The full boundaries of the case it must meet at trial will then be known. It will have a full opportunity prepare its defence and to marshal evidence to support it.
The charge struck out by the Court in Wells v Stillman and those under attack as invalid in Southgate Management and Baiada Poultry contained non-specific phrases which are almost terms or art. The phrases such as ‘police information’ or ‘food’ and the duties required under the Occupational Health & Safety Act can cover an exhaustively broad group of things. It is no coincidence in my view, that the cases in which the charges have been attacked in the higher courts, involve such nebulous terms. Without more to explain them in the charge, an accused does not have the reasonable information necessary to understand the case against him.
Where a charge contains a paucity of detail, it is no answer to say, “Well the accused was there so he must know”. That is a ‘bootstraps’ argument of the highest order and natural justice requires more that that. However at the same time, as apparent from the cases above, just because an accused may need and will have to seek further and better particulars of the allegations faced, does not mean the charge is invalid.[9]. The test is whether the charge contains the particulars necessary to give the accused 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 alleged.
[9] Southgate Management (2018) VSC 236 at paragraph 78; Wells and Stillman, Paragraph 23, Baiada at Paragraph 54
I also note the provisions of Section 9 of the CPA provides as follows
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.
CONCLUSION
None of the cases of Kirk[10] or John L Pty Ltd v Attorney-General (NSW)[11] in the High Court of Australia or Baiada[12] in the Victorian Court of Appeal, as canvassed above stand for the proposition that ‘time’ is an essential ingredient of a criminal charge. Whilst the judgment of Dixon J in Johnson v Miller, indicates time is a required particular, that finding is affected by the factual scenario specific to that case in which ‘time’ was a critical feature of the factual matrix including the availability of a defence. Further whilst the Court in Wells v Stillman at paragraph 57 of the Judgment of that Court recites ‘time’ as a required particular, I’m of the view that given it had not being argued before her Honour that ‘time’ was an essential ingredient of a criminal charge and the charge before her Honour was not found to be invalid on that basis, this reference is entirely obiter and therefore not binding upon me.
[10] [2010] HCA 1; (2010) 239 CLR 531
[11] [1987] HCA 42; (1987)163 CLR 508
[12] [2015] VSCA 344
I find that the charge before me being a statutory charge of speeding contrary to Road Rule 20 does not include the types of non-specific phrases as those under attack in the cases submitted upon and referred to above.
I find that ‘time’ is not an essential element of the offence alleged against this accused, given the factual matrix of this charge. That much was conceded by Mr Walsh-Buckley. Whilst the time alleged may be a particular necessarily included in a charge, this can only be in my view where such a fact is necessary to give the reasonable information required to understand the charge. An example of this might be, even in a speeding case, where a time variable speed zone was in effect. Accordingly, the non-inclusion of the time here does not invalidate this charge.
I find that the reference to ‘vehicle other than a heavy vehicle’ does sufficiently particularise the facts alleged in this charge and note that the registration number of the vehicle is included on the charge sheet.
Finally I find that the location of “Berwick, ‘on a length of road namely Princes Highway between Manuka Road and Beaconsfield Emerald Road”, does give sufficient particularisation of the location for the Accused to understand the case against him. I accept the learned prosecutor’s submission that this is an area of road approximately 700 meters long where at a speed detected, the vehicle will traverse about 35 metres per second and therefore cover that piece of road in about 20 seconds.
For the reasons aforesaid, I find that the single charge of speeding here alleged against Mr Weeks is not invalid by reason of any failure to give sufficient particulars. I refuse Mr Walsh-Buckley’s application to strike out the charge.
I should note that had I found the charge invalid for the reasons Mr Walsh Buckley submitted, I would not have allowed an amendment as I accept his argument that had the charge been invalid, the jurisdiction of the court had not been invoked. Given the statute of limitations had passed the prosecution would have, in those circumstances, been at an end.
Accordingly, the charge remains on foot and will be set down for contest.
Mr Tony Burns
Magistrate
Dandenong Magistrates Court
20th day of October 2020
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