Re Director of Public Prosecutions v Atalay
[2025] VSC 480
•8 August 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 05788
BETWEEN:
| DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of Gil Ian Locke) | Appellant |
| and | |
| SIBEL ATALAY | Respondent |
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JUDGE: | Barrett AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 July 2025 |
DATE OF JUDGMENT: | 8 August 2025 |
CASE MAY BE CITED AS: | Re DPP v Atalay |
MEDIUM NEUTRAL CITATION: | [2025] VSC 480 |
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CRIMINAL LAW — Judicial review of Magistrates’ Court decision to dismiss charge — Validity of charge under s 49(1)(eb) of the Road Safety Act 1986 (Vic) — Requirements for valid charge — Criminal Procedure Act 2009 (Vic), ss 6, 8, 9, sch 1, cl 1(a), 1(b) – Whether charge sufficiently described nature of the offence — Whether statutory preconditions described in s 55E(13)(a) and (b) are essential elements of distinct offences — Director of Public Prosecutions v Kypri (2011) 33 VR 157, Fox v Director of Public Prosecutions (2022) 66 VR 223, and DPP Reference No 2 of 2001; Collicoat v DPP; Bell v Dawson (2001) 4 VR 55 considered — Charge valid — Section 55E(13)(a) and (b) are not separate offences or essential matters required to be included in charge — Appeal allowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms E Ruddle KC, appearing with Mr L McAuliffe | Office of Public Prosecutions |
| No appearance for the Respondent |
TABLE OF CONTENTS
Introduction
Background
Magistrates’ Court hearing
Grounds of appeal
Statutory provisions
The offence
The charge and charge sheet
Principles
Consideration
HIS HONOUR:
Introduction
This is an appeal from Orders made in the Magistrates’ Court on 2 October 2024 dismissing a charge against Sibel Atalay (‘respondent’).
The respondent was charged under s 49(1)(eb) of the Road Safety Act 1986 (Vic) (‘RSA’) with failing to accompany a police officer for the purposes of a blood test. Section 6(3)(c) of the Criminal Procedure Act 2009 (Vic) (‘CPA’) provides that ‘a charge sheet must comply with Schedule 1’ to the CPA. Schedule 1 provides that a charge must state the offence and contain particulars, in accordance with cl 2, that are necessary to give reasonable information as to the nature of the charge. Clause 2 provides that the ‘particulars of the offence charged must be set out in ordinary language and the use of technical terms is not necessary.’[1]
[1]Road Safety Act 1986 (Vic) (‘RSA’) sch 1 cl 2.
The charge against the respondent was dismissed by the Magistrate on the basis that it failed to comply with sch 1.
The Director of Public Prosecutions (‘appellant’) brings this appeal pursuant to s 272(1) of the CPA on the basis that the Magistrate:
(a)made an error of law by dismissing a charge for failing to comply with the requirements as set out in the CPA; and
(b)made an error of law by dismissing a charge that failed to specify an alternate precondition under s 55E(13) of the RSA.
The respondent was represented in the Magistrates’ Court, and on 9 April 2025 in this Court when the appeal was listed for hearing on 25 July 2025. The respondent did not appear at this hearing.
Background
The alleged facts are summarised as follows. On 3 October 2021, Constable Gil Ian Locke and Sergeant Michael Free attended a motor vehicle accident in Airport West, where the respondent was driving and collided with a parked car. A preliminary oral fluid test resulted in a positive reading of a prescribed illicit drug.
Sergeant Free subsequently required the respondent to undergo an evidentiary oral fluid test. Over the next 53 minutes or so, the respondent was not able to provide a sufficient sample of oral fluid for the purposes of the test. Sergeant Free then required the respondent to accompany him to a police station or hospital for a blood sample to be taken. It is alleged that the respondent refused.
On 29 March 2022, Constable Locke charged the respondent with the following charges:
(a)careless driving (‘charge 1’); and
(b)refusal to accompany a police officer to provide a blood sample (‘charge 2’).
Charge 2 is drafted as follows:
The accused at Airport West on 3rd of October 2021 within 3 hours of being the driver of a motor vehicle when it was involved in an accident after having been required by a police officer to allow a sample of blood to be taken from her pursuant to section 55E(13) of the Road Safety Act 1986, and for that purpose a requirement was made for her to accompany a police officer to a place namely a police station or a hospital, she did refuse to comply with such requirement to accompany the police officer to that place in accordance with section 55E.
The ‘Offence Literal’ states ‘Refuse to Accompany for Blood Sample under Section 55E(13) (After Unsuccessful Oral Fluid Sample).’ The section of the Act is specified as s 49(1)(eb) of the RSA.
The statement of alleged facts in the preliminary brief relevantly contains the following:
Sergeant FREE then required the accused to undergo a preliminary oral fluid test. The result of the preliminary oral fluid test indicated the presence of an illicit drug in her system.
Sergeant FREE required the accused to undergo an oral fluid test. Police waited approximately one hour for the accused to furnish a sample of her oral fluid however the accused was unable to provide enough saliva to satisfy the DRUG WIPE II TWIN COMBO requirement or to Sergeant FREE’s satisfaction.
Sergeant FREE required the accused to accompany Police to obtain blood for the purpose of examination. The requirement was explained to the accused and she refused stating she was not willing to leave her address. Sergeant FREE explained the consequences for refusing and understood that she would lose her licence if she refused. The accused refused to accompany Police.
Magistrates’ Court hearing
On 2 October 2024, the matter was heard as a contested summary hearing at the Broadmeadows Magistrates’ Court. The respondent pleaded guilty to charge 1, and the Magistrate dismissed this charge pursuant to s 76 of the Sentencing Act 1991 (Vic).
In relation to charge 2, counsel for the respondent relied on detailed written submissions that outlined:
(a)the offence charged was not known to law because there are two discrete offences under s 49(1)(eb) of the RSA for failure to accompany based on s 55E(13), that is, an offence relying on s 55E(13)(a) and an offence relying on s 55E(13)(b), and the charge does not identify which of ss 55E(13)(a) or (b) was relied on;
(b)the charged offence is bad for duplicity because it does not distinguish between the two discrete offences in ss 55E(13)(a) and (b) and therefore alleges both;
(c)the requiring officer made an invalid requirement in that there was a failure to utter the words or an equivalent expression, ‘allow a registered medical practitioner or an approved health professional nominated by a person’ as required by s 55E(13). Therefore, the requirement was invalid and the refusal is not an offence;
(d)the requiring officer made an incomplete, and therefore invalid, requirement in that there was a failure to state that it appeared to him that the accused was unable to supply a sample of oral fluid of the mandated condition precedent in s 55E(13)(a) that is, ‘on medical grounds or because of some physical disability or condition’; and
(e)the empowering provision expresses a requirement of accompaniment to only one place, (by use of the expression ‘a place where the blood sample is to be taken’).[2] There is only a power to require a single definite ‘place’ for a blood test. Therefore, the requirement was invalid because it required the accused to attend ‘a police station or hospital‘, which is a requirement to accompany to two or more places.
[2]RSA (n 1) s 55E(13).
At the hearing in the Magistrates’ Court, submissions were made that the charge needed to be clear as to which limb of ss 55(13)(a) or (b) was being relied on. The respondent essentially submitted that there were two discrete offences:[3]
(a)refusal to accompany to a place to allow a doctor to take blood because the informant believed on reasonable grounds that the respondent was unable to provide a sample for the oral fluid test, either on medical grounds or physical disability or condition (being the description in s 55E(13)(a)); and
(b)refusal to accompany to a place to allow a doctor to take blood because the prescribed device is incapable of testing for the presence in the sample of a prescribed drug for any reason whatsoever (being the description in s 55E(13)(b)).
[3]Transcript of Proceedings, The Police v Sibel Atalay, (Magistrates’ Court, C. Burnside Magistrate, 2 October 2024) (‘Transcript’) 16-17.
It was submitted that the details in ss 55(13)(a) and (b) were essential elements of the offences that needed to be included in the charge. The Magistrate requested a version of a charge that would satisfy those requirements, and the respondent’s counsel provided it in the following terms, with additions to the original charge being underlined:[4]
ANNEXURE A
The accused at Airport West on 3rd of October 2021 within 3 hours of being the driver of a motor vehicle when it was involved in an accident after having been required by a police officer, who had required the accused under s 55E(2)(a) to provide a sample of oral fluid, to allow a sample of blood to be taken from her by a registered medical practitioner or an approved health professional nominated by the police officer requiring the sample of blood for analysis pursuant to section 55E(13)(a) of the Road Safety Act 1986, namely that the accused was unable to furnish the required sample of oral fluid on medical grounds or because of some physical disability or condition, and for that purpose a requirement was made for her to accompany a police officer to a place, namely a police station or a hospital,[5] she did refuse to comply with such requirement to accompany the police officer to that place in accordance with section 55E(13)(a).
[4]The underlined words are those added to the existing charge by counsel for the respondent.
[5]Counsel for the respondent included two different versions of the charge, the first of which included ‘police station’ and the second of which referred only to ‘hospital.’ Presumably this was on the basis that the charge had to identify whether the test was to occur at a police station or hospital.
The Magistrate accepted the respondent’s submissions, and that Annexure A was an appropriate formulation of the charge, and dismissed the charge on the basis that the charge did not:
(a)identify the provision creating the offence;[6]
(b)contain a ‘sufficient reference to the empowering provision’;[7] and
(c)contain a ‘sufficient clarification of what the accused failed to do.’[8]
[6]Transcript (n 3) 33-4.
[7]Ibid 35.
[8]Ibid.
The Magistrate referred to s 6(3)(c) of the CPA and concluded as follows:[9]
… For the purposes of clause 1(a) statement of statutory offence is sufficient if it identifies the provision creating the offence." Now that is not done in Charge 2. That is not done. So it ought to have specified that it was 55E(13)(a).
[9]Ibid 33-4.
The proposed charge in Annexure A refers to s 55E(13)(a) despite it being clear from the argument, and the preliminary brief, that it was not alleged at any time that the respondent did not provide a sample of oral fluid because of any medical condition or disability. It appears rather that the respondent simply could not generate enough saliva for the test to obtain a reading. Nothing turns on this apparent error, but the Magistrates’ acceptance of Annexure A as an appropriate formulation of the charge was an error insofar as that acceptance reflects the necessity for the charge to include reference to s 55E(13)(a) and ‘medical grounds or because of some physical disability of condition’, where none have been alleged.
Grounds of appeal
The appellant appeals under s 272(1) of the CPA on the grounds that the Magistrate:
(a)erred in finding that charge 2 was invalid for having failed to comply with the requirements of the CPA and the current case law; and
(b)erred in finding that a charge of refusal of a requirement to provide a sample of blood pursuant to s 55E(13) of the RSA must specify which of the alternate preconditions for such a requirement under s 55E(13) of the said Act applied in this particular case, notwithstanding the foreshadowed evidence disclosed at the time of the issue and service of the charge.
The appellant seeks orders quashing the Magistrates’ Orders and remitting the matter for rehearing according to law and costs.
The appellant submitted:
(a)the proper characterisation of the Act which comprises an offence under s 49(1)(eb) is one of failure to comply with a particular kind of requirement;[10]
(b)an offence under s 49(1)(eb) may be constituted by a failure to comply with a number of different requirements under ss 55D and 55E. That being the case, s 6(3)(c) and cl 1(b) of sch 1 to the CPA may require that the particular requirement be specified in the language of the charge; and
(c)there is only one requirement under s 55E(13), that is, a requirement to accompany for the purposes of having a blood sample taken, which is what was referred to in the charge. That gave reasonable information to the respondent as to the nature of the charge and complied with s 6(3)(c).[11]
Statutory provisions
[10]Director of Public Prosecutions v Kypri (2011) 33 VR 157, [12] (‘Kypri’).
[11]Criminal Procedure Act 2009 (Vic) (‘CPA’).
The offence
Part 5 of the RSA contains provisions governing ‘Offences involving alcohol or other drugs.’ The purpose of Part 5, as expressed in s 47(d), includes to ‘provide a simple and effective means of establishing the presence of a drug in the blood, urine or oral fluid of a driver.’ Section 49 describes various offences within this framework. The relevant section for present purposes is s 49(1)(eb) which provides:
Offences involving alcohol or other drugs
(1) A person is guilty of an offence if he or she—
…
(eb)refuses to provide a sample of oral fluid in accordance with section 55D or 55E when required under that section to do so or refuses to comply with any other requirement made under that section; or[12]
[12]Emphasis added.
Section 55D relevantly provides:
(1) A police officer may at any time require—
…
(c)any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident;
…
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.
Section 55E relevantly provides:
(2)If a person undergoes a preliminary oral fluid test when required to do so under section 55D by a police officer or an enforcement officer and—
(a)the test, in the opinion of the police officer or enforcement officer in whose presence it is made, indicates that the person's oral fluid contains a prescribed illicit drug;
…….
any police officer or, if the requirement for the preliminary oral fluid test was made by an enforcement officer, any police officer or any enforcement 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 or, if the requirement for the preliminary oral fluid test was made by an enforcement officer, any police officer or any enforcement 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.
(3)A police officer may require any person who is required to undergo an assessment of drug impairment under section 55A or to furnish a sample of breath for analysis by a breath analysing instrument under section 55 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 may, for that purpose, require the person to remain at the place at which the person is required to remain for the purposes of the assessment or furnishing the sample of breath until—
(a)the person has provided the sample of oral fluid 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 and the assessment has been carried out or the sample of breath has been furnished (as the case requires); or
(b)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) or (3) 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.[13]
[13]Emphasis added.
The charge and charge sheet
A criminal proceeding is commenced in the Magistrates’ Court by filing a charge sheet.[14] In relation to the requirements of a charge and charge sheet, s 6(3)(c) provides that ‘a charge sheet must comply with Schedule 1.’ Schedule 1 of the CPA provides:
[14]CPA (n 11) s 6(1)(a).
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.[15]
[15]Emphasis in original save for cl 3(1).
Section 8 of the CPA provides that a charge sheet may be amended in certain circumstances. Having regard to the conclusion I have reached, it is unnecessary to consider amendment of the charge sheet.
Principles
The principles in relation to the adequacy of particulars furnished as part of the charge were considered by the Court of Appeal in Fox v Director of Public Prosecutions v Fox (‘Fox’),[16] and recently summarised in Director of Public Prosecutions v Babacan (a pseudonym) (‘Babacan’)[17] as follows:
(a)there is a distinction at common law between those essential matters that must be contained within a charge, sometimes referred to as ‘particulars’, and those matters that must only be provided to the accused prior to any final hearing ‘which are commonly referred to as particulars’;[18]
(b)the statutory test for what a charge must contain is in cl 1(b) of sch 1 to the CPA and, while the common law may inform the content of that statutory test (i.e. to assist in understanding what might satisfy that requirement), it is a statutory test;[19]
(c)clause 1(b) of sch 1 requires the charge to contain particulars ‘necessary’ to provide ‘reasonable information’ about the ‘nature of the charge’. 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;[20] and
(d)whether the statutory test is satisfied in any given case is a question of fact and degree.[21]
[16][2022] VSCA 38 (‘Fox’), [10]-[11], [113].
[17][2024] VSCA 228 (‘Babacan’).
[18]Babacan (n 17) [31]; Fox (n 16) [10].
[19]Ibid.
[20]Fox (n 16) [11], [73(c)].
[21]Babacan (n 17) [31].
Consideration
The issue then is whether the charge contained the particulars ‘necessary to give reasonable information as to the nature of the charge’. That is a question of fact and degree in a given case, depending upon the offence in question and the factual allegations.[22] The central question is whether s 55E(13)(a) and s 55E(13)(b) are, as the Magistrate found, distinct offences that must be sufficiently disclosed in the charge.
[22]Ibid [40].
The case of Director of Public Prosecutions v Kypri (‘Kypri’) provides guidance as to when a section creates ‘multiple distinct offences’ and what that means in terms of the required contents of a charge. In Kypri, the charge alleged a contravention of s 49(1)(e) for a failure to comply with a request to accompany a police officer under s 55. Section 49(1)(e) provides that it is an offence if a person ‘refuses to comply with a requirement made under section 55(1), (2), (2AA), (2A) or (9A).’ The defence successfully argued at trial and on appeal, that the charge was invalid as each of the refusals contained in s 55 were separate offences, and as the charge failed to identify which sub-section the charge related to, it failed to contain the essential elements of the offence. On appeal to the trial division, the Court held that s 55 contained a number of different obligations to accompany police, being ss 55(1), 55(2) and 55(9A),[23] and each was a separate offence and that the failure to identify which of the sub-sections was relied on means that the charge failed to identify the essential elements of the charge.
[23]Kypri (n 10) [5]; Note that s 55(9A) is in similar terms to s 55E(13) of the RSA (n 1).
On appeal, Nettle JA applied what was said by Bray CJ in Romeyko v Samuels[24] that:
The true distinction ... is between a statute which penalizes one or more acts, in which case two or more offences are created, and a statute which penalizes one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several such characteristics.[25]
[24]Romeyko v Samuels (1972) 19 FLR 322, 345.
[25]Ibid, cited by Nettle JA in Kypri (n 10) [13].
Nettle JA held that the language of s 49(1)(e), in referring to various different sub-sections of s 55, penalises more than one act and therefore creates two or more offences.[26] Nettle JA held that the charge was invalid because it failed to identify the particular obligation (under s 55) that was alleged to have been breached.[27] Nettle JA contrasted s 49(1)(e) with s 49(1)(f)[28] the latter of which ‘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’[29] described in s 55.
[26]Kypri (n 10) [11]-[13] relying on DPP v Greelish (2002) 4 VR 220; [2002] VSCA 49, [32] (O’Bryan JA), [20] (Phillips JA), [11], [18] (Buchanan JA); Clarke v Goodey (Unreported, Supreme Court of Victoria, Court of Appeal, Batt and Buchanan JJA, 23 August 2002).
[27]Kypri (n 10) [10]-[16].
[28]See Director of Public Prosecutions Reference No 2 of 2001; Collicoat v Director of Public Prosecutions; Bell v Dawson (2001) 4 VR 55 (‘Bell’).
[29]Kypri (n 10) [11].
The force of Kypri is to require a charge to contain sufficient information to identify the act that is being penalised. If a section, such as s 49(1)(e), penalises numerous different acts by reference to another section, such as s 55, then the charge must sufficiently identify from among those options, the relevant act or refusal.[30] But if the section penalises only one refusal, then the charge must sufficiently identify only that act.[31]
[30]Ibid [11]-[12].
[31]Ibid [11].
It is apparent from the terms of s 49(1)(eb) that it creates distinct offences, namely:
(a)a refusal to provide a sample of oral fluid in accordance with s 55D;
(b)a refusal to provide a sample of oral fluid in accordance with s 55E; and
(c)a refusal to comply with any other requirement made under s 55D or s 55E.
That being the case, the charge is required to sufficiently identify the applicable refusal in s 55D or s 55E.
The relevant refusal in this case is a refusal to comply with a requirement under s 55E(13) to accompany a police officer for the purposes of a blood test, which is what the charge does. The Magistrate essentially concluded that the charge needed to go further and disclose which of ss 55E(13)(a) or (b) was relied on. However, s 55E(13) does not contain two separate requirements to accompany, and therefore does not describe two separate offences. It contains one requirement, that may arise in different circumstances described in (a) and (b).[32]
[32]This is consistent with the approach endorsed by Nettle JA (with the agreement of Ashley and Tate JJA) in Kypri at [11] in discussing Bell and the proper construction of s 49(1)(f).
Some of the submissions made by counsel for the respondent in the Magistrates’ Court suggested that a relevant essential refusal was a refusal to provide oral fluid pursuant to s 55E(13)(a).[33] It appears from the language of the decision that the Magistrate accepted that it was necessary to include details of the matters in s 55E(13)(a) (and by implication s 55E(13)(b) if applicable, although not expressly referred to), on the basis that the sub-section described a particular refusal that was an essential element of the charge. There are three comments to make about this:
(a)first, the prosecution never suggested that there were any ‘medical grounds or physical disability or condition’ that prevented an oral fluids test from being completed, so it was an error to conclude that the charge had to include those particular matters.
(b)second, neither of the pre-conditions in s 55E(13)(a) or (b) impose any requirement on any person to do anything in relation to which a refusal constitutes an offence. They describe circumstances in which a police officer is empowered under s 55E(13) to require a person to accompany them for a blood test.
(c)third, neither of the pre-conditions in s 55E(13)(a) and (b) necessarily requires any refusal to have occurred for their fulfilment. That is partly because they impose no requirement that can be refused, but also because of the nature of the circumstances described by those sub-sections. For example, s 55E(13)(a) may be satisfied if a person is unable to satisfy the requirements of an oral fluid test because their broken jaw is wired shut, and s 55E(13)(b) may be satisfied if the oral fluid testing device malfunctions. In either case, it is not necessary for the satisfaction of the conditions that there is any ‘refusal.’
[33]See the accused’s written submissions: A[17] (‘… charge does not describe the discrete offence ie refusing per s 55E(13)(a) (ie medical grounds or physical disability or condition.’), B[1] (… Leaving out which discrete offence has been committed, ie a refusal to comply with s55E(13)(a) OR s55E(13)(b) …); see also Transcript (n 3) 32.14-30.
This case has parallels with Fox in which the relevant charge was expressed as follows:
2. The accused … 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. [34]
[34]Fox (n 16) [149] (emphasis added).
The facts are different from this case insofar as in Fox, the accused actually attended to having a blood sample taken, but the relevant ground of appeal for present purposes was that the charge was invalid because it ‘failed to state the source of the police officer’s power to require [the accused] to take the oral fluid test and to allow the taking of a blood sample.’[35]
[35]Ibid [135].
In the trial division of this Court, Beale J rejected the submission that it was necessary to state the source of police power to require the relevant tests in the charges.[36] The defendant appealed to the Court of Appeal, and 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).[37]
[36]Ibid [158].
[37]Ibid [170].
The Court of Appeal rejected that submission and held:
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 [the accused] in this context go well beyond what is essential.[38]
[38]Ibid [191].
Accordingly in Fox, where a question had arisen as to the extent to which the charge had to include details of the power to require drivers to submit to testing procedures under s 55E(13), the Court rejected the submission that the charge had to include details of ‘each of the other matters provided for in s 55E(13)’, and focussed rather on the elements of the offence. The Court justified this approach by drawing a distinction between the essential elements of the offence, and other allegations of fact necessary to exist in order to create the offence. The Court in Fox[39] referred with approval to the observations of Charles JA in Director of Public Prosecutions Reference No 2 of 2001; Collicoat v Director of Public Prosecutions; Bell v Dawson[40] as follows:
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.[41]
[39]Fox (n 16) [194].
[40]Bell (n 28); Sheerin v Director of Public Prosecutions (2021) 288 A Crim R 162, [50].
[41]Fox (n 16) [194]; Bell (n 28) 63-4 [23] (emphasis altered) (citations omitted).
This is contrary to the broad submission made by counsel for the respondent in this case, and apparently accepted by the Magistrate, that ‘if you have to prove it, it’s got to be pleaded.’[42] It is also contrary to the submission made, and apparently accepted, that ss 55E(13)(a) and (b) are two distinct offences that have distinct essential elements that need to be included in the charge.
[42]Transcript (n 3) 24.21-22.
I consider that the reasoning in Kypri and Fox applies in this case. The relevant offence is created by s 49(1)(eb) and is an offence of failure to comply with a request to accompany a police officer to provide a blood sample in accordance with s 55E(13). The offence relied on in this case is not a refusal to provide an oral fluid sample. The charge in this case explicitly identifies the relevant refusal as one arising from a requirement under s 55E(13) to accompany a police officer for a blood test. The charge is clear as to the ‘requirement’ and ‘refusal’ upon which it is based. Section 55E(13) describes only one ‘refusal’ not two. While other matters, such as the pre-conditions described in subsections (a) and (b) may have to be proved, they are not essential elements that need to be included in the charge. To find otherwise would be inconsistent with the principles as discussed in Kypri, Fox and Babacan.
The charge as it is expressed provides the particulars necessary to give reasonable information as to the nature of the charge under s 49(1)(eb). For those reasons it is appropriate to quash the Magistrates’ Order made in respect of charge 2 and remit that charge back to the Magistrates’ Court for hearing and determination according to law. Having reached that conclusion, it is unnecessary to consider whether the Magistrate erred in striking out the charge without considering whether it should be amended.
The appellant also seeks an order that the respondent pay the appellant’s costs of this appeal including any reserved costs. If such an order is to be made, and subject to any further submissions, consideration should be given to whether an indemnity certificate under the Appeal Costs Act 1998 (Vic) should be granted.
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