Whedlock v Flaws
[2022] VSC 359
•6 July 2022
| 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 18th 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 18th 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 to specify the type of drug, the charges were missing an essential element. As such, they did not allege offences known to law and were invalid.
Mr Whedlock also argued that the informant could not amend the charges after the expiry of the relevant limitation period. As the charges failed to allege a valid offence, they were a nullity. To allow an amendment after the expiry of the limitation period would amount to the laying of a new charge, which was not permitted.
The informant argued that the type of drug was not an element of the offence, it was merely a matter to be adduced in evidence. The informant did not request any amendment to the charges, or make any submissions in relation to the issue of amendment, as he maintained that the charges were valid as they were.
On 14 December 2020, the magistrate upheld the validity of the charges. The magistrate also remarked that she would not have allowed amendment, had she found the charges to be invalid.
After the magistrate gave her decision on validity, Mr Whedlock pleaded guilty to both charges. According to Mr Whedlock’s lawyers, this was done to avoid a contested hearing on the facts, and so that he could pursue an appeal against the preliminary decision.
The magistrate found Mr Whedlock guilty of charge 2, the alternative offence laid under s 49(1)(h). She struck out charge 1. Mr Whedlock was convicted, fined $650.00, had all his driver’s licences cancelled, and was disqualified from obtaining a driver’s licence for 12 months from 14 December 2020.
The issues in this appeal
On 13 January 2021, Mr Whedlock filed a notice of appeal in this court, appealing the orders made below.
The questions of law raised by Mr Whedlock are:
(a) Did the magistrate err in finding the charge under s 49(1)(h) of the RSA (“the Charge”) properly alleged an offence, even though it failed to identify what drug was found in the oral fluid of Mr Whedlock?
(b) Did the Charge allege an offence known to law?
(c) Should the conviction entered on 14 December 2020 be quashed?
The orders sought by Mr Whedlock are:
(a) The Charge be dismissed; and
(b) The informant pay Mr Whedlock’s costs of the appeal and the costs before the proceedings in the Magistrates’ Court.
After the notice of appeal had been filed, on 16 June 2021 Beale J delivered judgment in Nunn v Pezzimenti & Anor (“Nunn”).[1] Beale J held that naming the alleged drug was a requirement of a valid charge under ss 49(1)(bb) and 49(1)(i) of the RSA.[2] Because the driving charges in that case did not specify the relevant drug, they were invalid.[3] However, the charges could be amended outside the limitation period, as the inclusion of the name of the alleged drug did not alter the nature of the offences,[4] and there would be no injustice occasioned by the amendment.[5]
[1] [2021] VSC 313.
[2]Nunn, [30].
[3]Ibid, [30].
[4]Ibid, [36], [37].
[5]Ibid, [38].
As a result of the decision in Nunn, on 13 August 2021, the informant filed submissions, conceding the invalidity of the Charge. The informant acknowledged that Nunn dealt with the primary issue raised by this appeal, namely whether the type of drug alleged is an essential factual ingredient of a charge such as the one in this case. The informant conceded that the magistrate’s finding that the Charge was valid, despite failing to allege one of the three “prescribed illicit drugs” specified in s 3 of the RSA,[6] was not open on the law, and the conviction should therefore be quashed.
[6] RSA s 3 defines “prescribed illicit drug” as “(a) methylamphetamine; or (ab) 3, 4-Methylenedioxy-N-Methylamphetamine (MDMA); (b) delta-9-tetrahydrocannabinol.”
Section 272(9) of the Criminal Procedure Act 2009 (Vic) (“CPA”) provides that after hearing and determining an appeal, this court may make any order that it thinks appropriate, including an order remitting the case for rehearing to the Magistrates’ Court, with or without any direction in law.
The only live question remaining on this appeal is whether or not this court should dismiss the Charge (as Mr Whedlock contends) or remit it to the Magistrates’ Court (as the informant contends). The answer to this question depends on whether it would now be possible to amend the Charge.
The power to amend
The power of the Magistrates’ Court to amend a charge-sheet is contained in s 8 of the CPA, which provides:
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.
There is no dispute that the relevant limitation period has expired in this case.[7]
[7]The limitation period for filing the charge-sheet was 12 months from the date of the offence, namely 12 months from 18 May 2019 (CPA s 7(1)).
Mr Whedlock argues that to amend the charge-sheet by inserting the name of the drug would be to charge “a new offence”, which is prohibited by ss 8(3) and 8(4)(b). He also argues that any such amendment would not comply with s 8(4)(a) or (c).
Mr Whedlock argues that Beale J was wrong to permit such an amendment in Nunn. He invites the court to follow the contrary first instance decisions in Glenister v Magistrates’ Court of Victoria & Anor (“Glenister”)[8] and Walters v Magistrates Court of Victoria & Anor (“Walters”)[9] instead. The informant argues that Nunn was correctly decided and should be followed.
[8][2014] VSC 265 per Ginnane J.
[9][2015] VSC 88 per Zammit J, who cited Glenister with approval by way of obiter dictum.
Since the hearing of this appeal, the Court of Appeal has upheld the correctness of Beale J’s decision in Nunn, in Fox v DPP, Bant v Grant, Nunn v Pezzimenti (“the Nunn appeal”).[10] Neither side sought to make any further submissions in this appeal following the decision in the Nunn appeal; that is unsurprising, as the decision in the Nunn appeal effectively disposes of most of Mr Whedlock’s arguments.
[10][2022] VSCA 38.
In the Nunn appeal, the Court of Appeal considered three separate appeals, all of which raised similar issues in relation to the validity of charges and charge-sheets, and the power to amend under s 8 of the CPA. The court made a number of general observations, before considering the facts of the three cases.
The Court of Appeal considered the statutory requirements of the CPA. Where a charge-sheet or charge fails to comply with the requirements of sch 1 of the CPA, it is not invalid simply by reason of that failure.[11] A charge-sheet may be able to be amended under s 8 of the CPA, even if the charge fails to include an essential element of the offence or otherwise fails to disclose an offence known to law. The fact that a charge may have been invalid at common law does not mean that it cannot be amended under s 8 of the CPA; however, such a charge would be ineffective unless amended.[12]
[11]CPA s 9(1).
[12]The Nunn appeal, [73(e) and (f)].
The Court of Appeal noted that the broad amendment power under s 8(1) permits amendment to a charge-sheet and/or any charge on the charge-sheet.
Where the limitation period for the offence has expired, the amendment power is constrained by ss 8(3) and (4). In particular:
(a) Section 8(4)(a) permits an amendment to a charge-sheet if, and only if, the unamended charge-sheet “sufficiently disclosed the nature of the offence”. This is directed to ensuring procedural fairness to the accused.[13] This is different from, and broader than, the requirements in cl 1 of sch 1 of the CPA concerning the statement of the offence and the provision of reasonable information as to the nature of the charge.[14] The fact that a charge does not comply with cl 1 of sch 1 does not mean that the charge necessarily fails to sufficiently disclose the nature of the offence.[15] Whether the nature of an offence is sufficiently disclosed will be a question of fact and degree, that will depend on the offence in question and the way in which the charge is framed.[16]
[13]Ibid, [27].
[14]Schedule 1 is headed “Charges on a charge-sheet or indictment”. Clause 1 provides that 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.”
[15]The Nunn appeal, [73(h)(i)].
[16]Ibid, [66].
(b) The charge-sheet itself must have sufficiently disclosed the nature of the offence. When considering s 8(4)(a), it is not permissible to look at extrinsic material that may have been provided to the accused.[17]
(c) The amendment cannot amount to the commencement of a proceeding for “a new offence”, because such an amendment would defeat the limitation period, contrary to ss 8(3) and 8(4)(b).[18] Whether a charge-sheet, as amended, amounts to the commencement of a proceeding for a new offence will depend on the particular reason for the amendment, the nature of the amendment, and the nature of the offence. There is no “bright line” distinction or formula to be applied in that regard. What is required is a comparison of the offence alleged in the unamended charge-sheet and the offence alleged in the amended charge-sheet.[19]
(d) Section 8(4)(c) permits an amendment to a charge-sheet if, and only if, the amendment will not cause injustice to the accused.[20] It is permissible to have regard to materials other than the charge-sheet when considering whether the amendment would cause injustice.[21]
[17]Ibid, [41].
[18]Ibid, [25].
[19]Ibid, [26].
[20]Ibid, [28].
[21]Ibid, [42].
So long as the conditions in ss 8(3) and (4) are met, a charge-sheet may be amended to cure a defect in a charge, even where the defect was such as to otherwise cause the charge to be invalid at common law.[22] Section 8 is a powerful indicator that a charge-sheet that contains a defect – even one that could, at common law, have led to invalidity of a charge – is not a nullity. The charge-sheet (including the charge) may be amended so as to cure the defect, so long as to do so would not work injustice to the accused (and, if the limitation period has expired, so long as the amendment also complies with ss 8(3) and (4)).[23]
[22]Ibid, [29].
[23]Ibid, [30].
Is the Charge capable of amendment?
Having considered the relevant general principles, I turn to consider whether the Charge is capable of being amended, so as to specify methylamphetamine as the “prescribed illicit drug” alleged to have been present in Mr Whedlock’s oral fluid.
As mentioned earlier, the informant concedes that the type of drug is an essential factual element, which was not identified in the Charge. However, for the reasons given in the Nunn appeal, it is not helpful to describe the defective Charge using common law terminology such as “invalid”. It is more accurate to describe it as “ineffective”, unless it is amended.
Given the expiry of the relevant limitation period, I turn to consider the parties’ arguments in relation to ss 8(3) and (4).
Has there been sufficient disclosure of the nature of the offence?
Section 8(4)(a) requires that the charge-sheet before the amendment “sufficiently disclosed the nature of the offence.” As discussed above, the fact that a charge does not comply with cl 1 of sch 1 does not mean that the charge necessarily fails to sufficiently disclose the nature of the offence. The “nature of the offence” (s 8(4)(a)) is broader and less demanding than the “nature of the charge” (cl 1 of sch 1).
In Nunn, the driver was charged with drug offences under s 49(1)(bb) and (i) of the RSA. Both charges specified the relevant circumstances said to give rise to the offence and the statutory provision creating the offence, but failed to specify the particular drug. Beale J held that the failure to specify the drug meant that there had been a failure to give “reasonable information as to the nature of the charge” (as required by cl 1 of sch 1). However, his Honour held that the charge-sheet before the amendment did sufficiently disclose “the nature of the offence”.[24] His Honour’s findings were upheld by the Court of Appeal.
[24]Nunn, [36].
The Charge has been drafted in an almost identical manner to the two charges in Nunn. It’s only deficiency is the failure to specify the drug. Applying the Court of Appeal’s reasoning here, on its face the charge-sheet which contains the Charge does sufficiently disclose the nature of the offence. The requirements of s 8(4)(a) are satisfied.
Would amendment give rise to a “new offence”?
Mr Whedlock argues that amending the Charge to include the name of the drug would “amount to the commencement of a proceeding for a new offence”, contrary to ss 8(3) and (4)(b).
However, the Court of Appeal rejected that same argument by the driver in the Nunn appeal. The Court of Appeal carefully analysed the same authorities as the parties referred to in this appeal, said that Glenister (upon which Mr Whedlock placed great weight) ought not be followed, and concluded that “the contention that an amendment which renders an ‘invalid’ charge ‘valid’ constitutes the commencement of a proceeding for a new offence is incorrect.”[25]
[25]The Nunn appeal, [189].
The Charge is relevantly similar to the charges in Nunn, and the proposed amendment is the same type as in that case. Applying the Court of Appeal’s reasons, I reject Mr Whedlock’s argument that amending the Charge to include the name of the drug would constitute the commencement of a proceeding for a new offence.
Would the amendment cause injustice?
The informant argues that there would be no injustice caused by amending the Charge to refer to methylamphetamine, because Mr Whedlock has at all relevant times been well aware of the alleged drug by reason of the following matters:
(a) The preliminary brief specified in the summary the name of the drug alleged to be in Mr Whedlock’s system;
(b) The preliminary brief included a certificate specifying the name of the drug; and
(c) Mr Whedlock was informed at the time of the alleged offending of the drug alleged to be present.
Mr Whedlock objects to the above evidence being before the court on this appeal, on the basis that it is new evidence that was not before the Magistrates’ Court. The evidence was not before the court below, because Mr Whedlock chose to plead guilty after the magistrate upheld the validity of the charges. However, this court is not considering the merits of the Charge, so is not restricted to a consideration of the evidence below (subject to leave being granted to adduce new evidence).
The Court of Appeal in the Nunn appeal said that, in considering possible injustice under s 8(4)(c), the court may have regard to extrinsic materials beyond the charge-sheet itself. In Nunn, regard was had to the preliminary brief and other extrinsic information provided to the driver as to the identity of the alleged drug. Given the matters set out in paragraph [37], amending the Charge to name methylamphetamine as the drug will only confirm what Mr Whedlock has known at all relevant times. It will cause no injustice to Mr Whedlock.
Mr Whedlock also argues that it would be unfair to remit the Charge for amendment, because the magistrate considered the question of amendment, and declined to amend. That argument overstates the position.
It is true that Mr Whedlock argued below that no amendment should be allowed. But the informant did not make submissions in relation to the question of amendment, because he did not regard it as necessary to make an amendment application.
Notwithstanding that there was no amendment application before her, the magistrate “noted” that had she found the charges invalid, she would not have allowed an amendment “as the jurisdiction of the court would not have been invoked.” Why she felt it appropriate to comment on what she would have done on an application that was not before her, when she had only heard from one side on the issue, is unclear. In so far as she stated that “the jurisdiction of the court would not have been invoked”, the magistrate was wrong as a matter of law.
Mr Whedlock also criticises the informant for not having sought to appeal the magistrate’s decision not to amend the Charge; he says it would be unfair to remit the Charge for amendment in those circumstances. The criticism is misconceived. The magistrate’s remarks about amendment were, at best, made by way of obiter dicta.[26] They are not capable of being the subject of an appeal. She made no order in relation to amendment, so there is nothing for the informant to have appealed against.
[26]They may, in fact, more accurately be regarded as having been made per incuriam.
The magistrate’s off-the-cuff remarks about amendment are in no way binding on any other judicial officer. There would be no injustice to Mr Whedlock in remitting the Charge to the Magistrates’ Court, for another magistrate to hear an actual amendment application, in which both sides make submissions, in accordance with the law.
Conclusion
The parties are in agreement that the questions of law asked in the notice of appeal (and set out at paragraph [12] of these reasons) should be answered as follows:
Question 1 – Yes
Question 2 – No
Question 3 – Yes
For the reasons discussed above, I am satisfied that the Charge is capable of amendment by the Magistrates’ Court under s 8 of the CPA. The question then becomes whether it is appropriate to remit the Charge to the Magistrates’ Court for rehearing.
A remittal is appropriate in this case, because the merits of the Charge have not been argued or determined. Accordingly, Mr Whedlock has not been prejudiced by the matter running on an improper or incomplete basis below; nor would a remittal allow the informant to correct a defective statement or evidence given.
Mr Whedlock does not point to any other prejudice that remittal might cause him (beyond the matters he alleged as prejudice that would be caused by an amendment). I am satisfied that it is in the interests of justice that the Charge be remitted to the Magistrates’ Court for rehearing in accordance with the law.
I will hear from the parties as to the precise form of orders, including in relation to the question of the costs of this appeal and below.
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