Whedlock v Flaws - [2022] VSC 359

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S ECI 2021 00055

IN THE MATTER of an appeal on a question of law pursuant to s 272 of the Criminal Procedure Act 2009
GRAHAM WHEDLOCK	Appellant
v
SAMUEL FLAWS	Respondent

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2021
DATE OF JUDGMENT:	6 July 2022
CASE MAY BE CITED AS:	Whedlock v Flaws
MEDIUM NEUTRAL CITATION:	[2022] VSC 359

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CRIMINAL LAW – Appeal on a question of law – Drug driving offences – Driving with prescribed illicit drug in oral fluid – Drug not named in charge – Charge invalid – Whether charge should be dismissed or remitted to Magistrates’ Court – Whether charge capable of amendment – Conviction quashed and charge remitted – Road Safety Act 1986 (Vic) ss 3, 49(1)(bb), (h) – Criminal Procedure Act 2009 (Vic) ss 7(1), 8, 9(1), 272, Schedule 1

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APPEARANCES:	Counsel	Solicitors
For the appellant	Mr S Hardy	The Law Offices of Barry Fried
For the respondent	Ms E Ruddle QC	Ms A Hogan, Solicitor for Public Prosecutions

HER HONOUR:

Introduction

On 18 May 2019, the appellant, Graham Whedlock, was driving his motorcycle in Dandenong, when he was intercepted by the informant, Constable Samuel Flaws. The informant required Mr Whedlock to undergo an oral fluid test, pursuant to s 55E of the Road Safety Act 1986 (Vic) (“RSA”). Mr Whedlock allegedly failed the test.

On 7 July 2019, Mr Whedlock was charged with the following charges:

Charge 1

The accused at Dandenong on 18^th of May 2019 did drive a motor vehicle while more than the prescribed concentration of drugs was present in his oral fluid. (s 49(1)(bb) of the RSA)

Charge 2

The accused at Dandenong on 18^th of May 2019 did within 3 hours after driving a motor vehicle provide a sample of oral fluid in accordance with section 55E and the sample having been analysed by a properly qualified analyst within the meaning of section 57B 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 a motor vehicle. (s 49(1)(h) of the RSA)

Neither charge mentioned the name of the drug, methylamphetamine, which was alleged to have been present in Mr Whedlock’s oral fluid.

Mr Whedlock initially pleaded not guilty to both charges, and they were listed for a contested hearing in the Magistrates’ Court. Mr Whedlock then sought to challenge the validity of the charges as a preliminary matter on 14 October 2020.

Mr Whedlock argued that, in order to be valid, a charge under either of those two provisions needed to identify the essential elements of the alleged offence, which included the specific drug(s) alleged to have been present. Consequently, in failing…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Whedlock v Flaws

Details

AGLC: Whedlock v Flaws [2022] VSC 359
Case: [2022] VSC 359
Decision Date: 6 July 2022

CaseChat Overview and Summary

Whedlock v Flaws involves an appeal against a conviction for drug driving offences. The respondent, Flaws, was charged with driving with a prescribed illicit drug present in his oral fluid, a charge that specified the drug was not named in the charge itself. The matter was heard in the Court of Appeal of the Supreme Court of Victoria. The appellant argued that the charge was invalid because the specific drug was not named, and therefore the charge should either be dismissed or remitted to the Magistrates' Court. The appellant contended that the charge was not capable of amendment, and the conviction should be quashed. The legal issues before the court were whether the charge was invalid due to the omission of the specific drug, and if so, whether the charge should be dismissed or remitted to the Magistrates' Court for amendment.

The court considered the statutory framework provided by the Road Safety Act 1986 and the Criminal Procedure Act 2009. It was held that the charge was indeed invalid as it did not comply with the requirements of specifying the exact drug in the charge. The court found that the charge was not capable of amendment as it lacked the necessary specificity. Consequently, the conviction was quashed, and the charge was remitted to the Magistrates' Court for re-hearing. The court relied on provisions from the Criminal Procedure Act 2009, which mandate that charges must be specific and clear, and the omission of such details renders the charge invalid.

The reasoning of the court was that the statutory requirements for charges under the Road Safety Act 1986 were mandatory and must be strictly adhered to. The omission of the specific drug in the charge meant it did not meet the legislative criteria, thus making the charge invalid. The court emphasised that charges must be precise to ensure that the accused is fully aware of the allegations against them. The court did not find it appropriate to dismiss the charge outright, as this would have potentially prejudiced the respondent's right to a fair hearing. Instead, the charge was remitted to allow for proper amendment and re-hearing. The final orders of the court were to quash the conviction and remit the charge to the Magistrates' Court for further proceedings.

Orders