Appellant/Plaintiff v Respondent/Defendant

The respondent is charged with refusing a breath test

1 At 1.55 am on 2 June 2019, Shaun James Fogarty (for convenience, 'the respondent'), was driving a motor vehicle in Gisborne, when he was intercepted by Senior Constable Rebecca Ayson (for convenience, 'the informant') and another police officer, who were performing traffic re-direction duties.

2 When requested to produce his driver licence the respondent failed to do so, producing instead another form of identification. Police then administered a preliminary breath test ('PBT'), which proved positive. At the informant's request, the respondent accompanied her to the Gisborne Police Station for the purposes of an 'evidentiary' breath test.

3 At 3.06 am, the informant - who is an authorised operator of a breath analysing instrument under s 55(3) of the Road Safety Act 1986 ('RSA') - required the respondent to furnish a sample of breath into a breath analysing instrument. The respondent refused, however, to provide a sample of breath, and the instrument produced a 'no sample' certificate.

4 Having advised the respondent of the consequences of refusing to furnish a sample of breath for analysis, at 3.11 am the informant made a further requirement that the respondent furnish a sample of breath. The respondent again refused, however, and the instrument once more produced a 'no sample' certificate. The respondent then left the police station.

5 On 14 August 2019, the informant issued a charge-sheet and summons containing two charges.[1] Charge 1 alleged a breach of s 49(1)(e) of the RSA, and was expressed in the following terms:

The accused at Gisborne Police Station on 2nd June 2019, after having been required to furnish a sample of breath pursuant to section 55(1) of the Road Safety Act 1986, did refuse to comply with such requirement prior to 3 hours elapsing from the driving of a motor vehicle.

6 Charges 1 and 2, a Preliminary Brief of Evidence ('Preliminary Brief') and a Notice of Immediate Suspension of Licence were served on the respondent on 16 August 2019.

7 Significantly, on 24 May 2020, the informant issued and filed charge 3 - also alleging a breach of s 49(1)(e) of the RSA - formulated as follows:

The accused at Gisborne on 2nd June 2019, after having been required to furnish a sample of breath pursuant to s 55(2A) of the Road Safety Act 1986, did refuse to comply with such requirement prior to 3 hours elapsing from the driving of a motor vehicle.

8 In advance of the return date of the charges, the respondent's solicitor filed anticipatory written submissions, signed by counsel and dated 25 June 2020, with the Magistrates' Court at Kyneton. Those submissions contended that the Court had 'no jurisdiction to hear' charges 1 and 3 'due to breaches of the common law and Criminal Procedure Act 2009 (Vic) ... on the mandatory requirements for contents of charge sheets'.

9 At a mention at the Magistrates' Court at Kyneton on 20 July 2020, the matter was adjourned to a hearing on 28 September 2020 to determine the validity of charges 1 and 3. In the lead-up to that hearing, the respondent's solicitor filed further, somewhat elaborate, written submissions, signed by counsel and dated 4 September 2020. These further submissions were addressed to asserted 'pleading defects' in charges 1 and 3, and once again contended that the Court had 'no jurisdiction to hear' charges 1 and 3 'due to breaches of the common law and Criminal Procedure Act 2009 (Vic) ... on the mandatory requirements for contents of charge sheets'. The prosecutor, Leading Senior Constable Alan Walker ('the prosecutor'), filed and served responsive written submissions.

10 On 28 September 2020, a Magistrate heard oral submissions from the respondent's counsel and the prosecutor with respect to the validity of the charges. The matter was then adjourned to 19 October 2020.

11 Prior to the hearing on 19 October 2020, however, the Magistrate provided the parties with Reasons for Decision ('Reasons'), dated 13 October 2020. The Magistrate concluded the Reasons by saying: 'Charges 1 and 3 are held invalid and are thereby struck out'.

12 During the hearing on 19 October 2020, the Magistrate on three occasions said that he had 'dismissed' charges 1 and 3 (his Reasons, as I have mentioned, having stated that they were 'struck out').[2] A Certified Extract issued that day recorded the 'Court Order' as follows:

Dismissed.

MERITS OF THE CASE

THE CHIEF COMMISSIONER OF POLICE PAY THE DEFENDANT'S COSTS IN RESPECT OF CHARGES 1 & 3 ...

13 Somewhat remarkably, on 21 October 2020 another Certified Extract was issued, which recorded the Court Order to be:

THE CHIEF COMMISSIONER OF POLICE PAY THE DEFENDANT'S COSTS IN RESPECT OF CHARGES 1 & 3 ...

Dismissed.

OTHER

Special Conditions:

CHARGES STRUCK OUT AS BEING INVALID.

14 On behalf of the informant, the Director sought judicial review of the Magistrate's decision under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015, and also appealed against the Magistrate's orders under s 272 of the Criminal Procedure Act 2009 ('CPA'). These two different forms of relief were sought because it was unclear whether the Magistrate had made final orders. Before this Court, however, both parties agreed that it was the clear intention of the Magistrate to bring the proceedings against the respondent to an end, he having purported to 'dismiss' the charges. With the agreement of the parties, I therefore have proceeded on the basis that the Magistrate made a final order,[3] and have accordingly dealt with the matter as an appeal under s 272.

15 The Notice of Appeal under s 272 of the CPA contains six grounds, expressed as questions of law. In effect, they contend that the Magistrate erred:

1. ... in finding that that Charges 1 and 3 were invalid for having failed to comply with the requirements of the Criminal Procedure Act 2009 and the current case law.
2. ... in undertaking extra-curial investigation of other charge sheets to determine the validity of the instant charges.
3. ... in accepting that he should not have any regard to the associated documents filed and served upon the accused which fully disclosed the basis of the prosecution case, notwithstanding that the facts were canvassed in the written submissions provided to the court and questions put to the prosecutor during argument.
4. ... in assessing the adequacy of the particulars of the charges on the basis that the court was to have a proper understanding of the allegations rather than the accused.
5. ... in finding that it was not open to the court to amend the charge under s 8(4) of the Criminal Procedure Act 2009 because the charges did not sufficiently identify an offence.

6. ... in holding that Charges 1 and 3 failed adequately to particularise the manner in which the accused refused to comply with the respective requirements that arose in accordance with sections 55(1) and 55(2A) of the Road Safety Act 1986.

Road Safety Act provisions

16 In order to understand the issues in the case, it is necessary to turn to key provisions of the RSA.

17 First, s 49(1)(e) of the RSA provides:

49 Offences involving alcohol or other drugs

(1) A person is guilty of an offence if he or she -

...

(e) refuses to comply with a requirement made under section 55(1), (2), (2AA), (2A) or (9A); ...

18 Secondly, ss 55(1) and (2A) of the RSA provide:[4]

55 Breath analysis

(1) If a person undergoes a preliminary breath test when required by a police officer ... to do so and -

(a) the test in the opinion of the police officer ... in whose presence it is made indicates that the person's breath contains alcohol; or

(b) the person, in the opinion of the police officer ... refuses or fails to carry out the test in the manner specified in section 53(3) -

any police officer ... may require the person to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose may further require the person to accompany a police officer ... to a place or vehicle where the sample of breath is to be furnished and to remain there until the person has furnished the sample of breath and any further sample required to be furnished under subsection (2A) and been given the certificate referred to in subsection (4) or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner.

...

(2A) The person who required a sample of breath under subsection (1), (2) or (2AA) may require the person who furnished it to furnish one or more further samples if it appears to him or her that the breath analysing instrument is incapable of measuring the concentration of alcohol present in the sample, or each of the samples, previously furnished in grams per 210 litres of exhaled air because the amount of sample furnished was insufficient ... or for any other reason whatsoever.

19 It will be appreciated that the provisions set out immediately above are concerned with the requirement that a person furnish a sample of breath for analysis by a breath analysing instrument following a PBT, and, in the police officer's opinion, either the PBT indicated that the person's breath contains alcohol, or the person refused or failed to carry out the test in the manner specified by s 53(3).[5]

20 The circumstances in which a police officer may require a person to undergo a PBT are set out in s 53(1) of the RSA, which provides:

53 Preliminary breath 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; or

(b) the driver of a motor vehicle that has been required to stop, and remain stopped at a preliminary testing station under section 54(3); or

(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; or

(d) any person who he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a motor vehicle when it was involved in an accident, if it has not been established to the satisfaction of the police officer which of the occupants was driving or in charge of the motor vehicle when it was involved in to undergo a preliminary breath test by a prescribed device. the accident -

to undergo a preliminary breath test by a prescribed device.

21 So far as relevant, the Magistrate's Reasons for striking out the charges were as follows:[6]

1. The Accused, Mr Fogarty, is charged with two charges pursuant to s 49(1)(e) of the Road Safety Act 1986 (Vic). These are charges 1 and 3 (charge 2 not being in issue here). The offences are alleged to have occurred at Gisborne on 2 June 2019. Mr Fogarty contests the charges, and in pre-trial argument it is argued on his behalf by Mr Walsh-Buckley that the charges are so deficiently pleaded as to be invalid, and incapable of amendment, more than 12 months having expired since their alleged commission.

1. It is perhaps worth noting at the outset that the charge of Refusing a Breath Test - and the analogous charge of Refusing an Oral Fluid Test - are commonplace charges which Victorian magistrates deal with on a frequent basis, and magistrates regularly read the charges aloud to an unrepresented Accused before taking their plea. The experience of this Court is that such charges are usually particularised more thoroughly than they have been in this case.1 If, for example, the refusal alleged pursuant to s 55(1) is a refusal to accompany to a place where the sample of breath is to be furnished, that refusal to accompany is typically pleaded. In this case the charges are couched in broad terms of refusing to comply with ss 55(1) and 55(2A) respectively, without particularising in which of the several possible ways the alleged non­compliance has occurred.

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1. Lest I was mistaken about that impression, I had the Co-ordinator in this region furnish me with more than a dozen other files with the same charges, for the purposes of comparison: without exception, they were all more thoroughly particularised than this case.

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1. Bearing in mind the Court has yet to hear any evidence in this case, the Court considered reading a copy of the Summary of Evidence, so as to gain some understanding of the factual matrix, however Mr Walsh-Buckley objected to this. That objection was, in hindsight, probably tactically shrewd: as a consequence the Court has been a little unsure as to precisely how the charges are put; this would almost certainly not be the case if they contained their essential factual ingredients.
2. What the Court has been able to ascertain about the allegations against Mr Fogarty have been gleaned from Mr Walsh-Buckley's written submissions, and from questions put to the Prosecutor during brief argument on 28 September 2020. _As the Court understands it, Charge 1 is put on the basis of his having refused a breath test (he apparently said he was suffering from a medical condition which prevented it). And Charge 2 is put on the basis that, having already refused a first time, he was then asked again, and refused that request too._2

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1. This Court is familiar with police making a second request as a matter of fair play, in order to give the driver another chance to comply, but this Court has never heard of a second request being the basis of a second charge! Section 55(2A) provides for persons being required to provide a further sample or samples in circumstances including the first sample being insufficient, a power failure or malfunction, 'or for any other reason whatsoever'. Surely Parliament intended that 'for any other reason whatsoever' meant for any other reason a second or subsequent sample became necessary, rather than multiple requests being the foundation for multiple charges?

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1. The difficulty, however, is that none of this is apparent from the wording of the charges - the essential factual ingredients of the offences are missing. A mere reference to s 55(1) could alternatively mean that the Accused refused to:
   • Accompany an officer to a place; or
   • Remain at the place until the sample was furnished and the certificate was given; or
   • Remain at the place until 3 hours after driving; or
   • Furnish a sample of breath for analysis; or
   • Furnish a sample of breath by exhaling continuously into the instrument to the satisfaction of the person operating it.
2. Similarly, a mere reference to s 55(2A) could mean alternatively that a further sample of breath was required because:
   • The amount of exhaled air from the first attempt was insufficient; or
   • There was a power failure or some other malfunction; or
   • Some other reason.

10. In reply, the Prosecution - very simply and not unreasonably - point to Schedule 1 of the Criminal Procedure Act 2009, and in particular, Clause 3(2) which states:

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.

1. On the face of it, both charges appear to comply with that simple test. However it is clear from the authorities of Baiada Poultry Pty Ltd v Victorian WorkCover Authority [2015] VSCA 344 and Wells v Stillman & Anor [2020] VSC 51 that the requirements as set out in the schedule do not supplant the common law requirements: reasonable information identifying the essential factual elements of the offence must be provided. Quigley J at para 22 of Wells v Stillman ruled that 'It can be observed that it is generally necessary to do more than merely reciting the statutory language or using words of general application because this would not generally identify the conduct making up the actual ingredients of the offence'. At para. 23 Her Honour also stated 'What is necessary are sufficient particulars to make it clear what was the act or omission alleged to constitute the offence'.
2. Her Honour's observations seem apposite here. The charges simply refer to ss 55(1) and 55(2A) (and almost randomly, it would appear, the 3 hour element), leaving the reader to guess as to which of the several different possible ways the alleged offences might have been committed. While I do not accept that charges must be particularised in such detail as to render them prolix_, here the most basic description of the essential factual ingredients is missing_ - reasonable information which would usually be included.
3. It is, of course, no answer in this situation effectively to reverse the presumption of innocence by saying 'the Accused was there - he should know what we're talking about'; nor will a request for particulars remedy the situation: 'The necessary information must be contained within the charge itself'.3
4. Section 8(4)(a) of the Criminal Procedure Act 2009 would permit amendment of the charges outside the limitation period for these summary offences if the charge sheets sufficiently disclosed the nature of the offences, but for the reasons above, this Court rules that they did not. Charges 1 and 3 are held invalid and are thereby struck out.

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• first, found that the charges 'are couched in broad terms of refusing to comply with ss 55(1) and 55(2A) respectively, without particularising in which of the several possible ways the alleged non­compliance has occurred';

• secondly, remarked that the Court's experience is that similar charges 'are usually particularised more thoroughly than they have been in this case';

• thirdly, had the regional Co-ordinator furnish him 'with more than a dozen other files with the same charges, for the purposes of comparison', those charges 'without exception' all being 'more thoroughly particularised than this case';

• fourthly, avoided looking at the Summary of Evidence served with the charges;

• fifthly, understood that charge 1 was put on the basis of the respondent having refused a breath test, and charge 2 was put on the basis that, having refused a first request, he also refused a second request;

• sixthly, concluded that the manner of the alleged breaches is not 'apparent from the wording of the charges', since the 'most basic description of the essential factual ingredients is missing', thus 'leaving the reader to guess as to which of the several different possible ways the alleged offences might have been committed'; and

• seventhly, held that although the CPA would 'permit amendment of the charges outside the limitation period ... if the charge sheets sufficiently disclosed the nature of the offences', in this case the charges did not do so.

Grounds 1, 4 and 6: Inadequate particularisation?

23 Turning to the grounds of appeal, I consider that grounds 1, 4 and 6 - which challenge the Magistrate's decision to dismiss charges 1 and 3 because they were inadequately particularised - should be upheld.

24 By virtue of s 5 of the CPA, a criminal proceeding may be commenced by filing a charge-sheet in accordance with s 6. The statutory requirements for a charge-sheet are spelled out in s 6(3). Hence, a charge sheet must be in writing, signed by the informant personally and comply with Schedule 1.

1. So far as is relevant for present purposes, Schedule 1 provides:[7]
   1. Statement of offence

(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.

(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.

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.

(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.

26 Further, ss 8 and 9 of the CPA provide (so far as relevant):

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.

...

(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.

27 In Baiada[8] - which involved an unsuccessful challenge to the validity of a charge under s 26 of the Occupational Health and Safety Act 2004 - the Court made clear that the provisions of the CPA do not supplant common law requirements, and that the common law elucidates what constitutes 'reasonable information as to the nature of the charge'. For a charge to be valid, therefore, the essential factual elements of the offence, in addition to its legal nature, must be identified in the charge.[9]

28 Further, as I observed in Southgate Management (a case which involved challenges to the validity of charges laid under the Food Act 1984):[10]

The common law requires that the defendant must be provided with the substance of the charge which he or she is called upon to meet,[11] and the court be informed of the identity of the offence with which it is required to deal. Indeed, a defendant is not able to plead to a charge unless he knows the precise case which is the basis for the preferred charge.[12] But as the cases make plain, the necessity to be able to identify the particular occurrences or transactions which are the subject of the charge - particularly those tried on indictment - is not concerned solely with forensic prejudice to the defendant.[13]

In John L, Mason CJ, Deane and Dawson JJ said:[14]

The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both 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 is called upon to meet: 'an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence': Ex parte Lovell; Re Buckley.[15] The nineteenth century United Kingdom legislation which was enacted to render summary proceedings before justices less open to technical objection ... in particular, Justices Act 1902 (NSW) ss 65 and 145A. One can point to statements of authority which lend support for the view that that legislation did not go so far as to abrogate the requirement that a valid information must at least identify the essential factual ingredients of the actual offence: see, e.g., Smith v Moody;[16] Johnson v Miller;[17] Ex parte Graham; Re Dowling.[18] ... That being so, the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence.

In De Romanis v Sibraa,[19] Mahoney JA correctly pointed out that there was no technical verbal formula which could be applied to determine whether an information sufficiently identified the essential ingredients of the alleged offence. As his Honour commented:[20]

In Johnson v Miller[21] Dixon J saw the decision in Smith v Moody[22] as requiring the information to specify 'the time, place, and manner of the defendant's acts or omissions'; McTiernan J[23] referred to 'fair information and reasonable particularity as to the nature of the offence charged'. The rule does not require that the information contain all such material as a defendant may require, upon an application for particulars, for the preparation of his defence: Ex parte N. Ormsby & Sons Pty Ltd; Re Mason[24]. ...

These cases establish that it may not be sufficient for an information to state the offence charged: it may be required to condescend to particulars. But, ... they do not indicate that the information must go beyond the statement of the offence and the proper particularization of it.

As was pointed out in John L, although legislation has to some extent modified the common law, the applicable legislation did not go so far as to abrogate the essential common law requirement that a charge must condescend to identifying the essential factual ingredients of the actual offence.[25] The facts need not be as extensive, however, as those that a defendant might obtain on an application for particulars.[26]

29 Importantly, in Bell,[27] Charles JA (with whom Winneke P and Chernov JA agreed), having cited the observation of Tadgell J in Smith v Van Maanen that 'it is necessary to strive conscientiously to read any [charge] in a sense that gives it the meaning that the draughtsman intended',[28] made it clear that 'a charge should be interpreted in the manner a reasonable defendant would understand it, giving reasonable consideration to the words of the charge, in their context'.

30 Focussing first on charge 1, s 49(1)(e) of the RSA makes it an offence for a person to refuse 'to comply with a requirement made under section 55(1)'.

31 The essential requirement under s 55(1) is to 'to furnish a sample of breath for analysis by a breath analysing instrument'. As I have indicated, that essential requirement only arises if a relevant person has undergone a PBT as required by a police officer, and, in the opinion of the police officer, either the test indicates the person's breath contains alcohol, or the person refuses or fails to carry out the PBT in the specified manner.

32 So as to ensure that the essential requirement to furnish a sample of breath for analysis is fulfilled, a police officer may make the further requirements that the person accompany the police officer to a place or vehicle where the sample of breath is to be furnished and remain there until either the person has furnished the sample of breath[29] and been given the certificate referred to in s 55(4), or until three hours after the driving,[30] whichever is sooner.

33 Self-evidently, in the present case charge 1 did not allege a failure to accompany a police officer or a failure to remain at a place or vehicle. Instead, charge 1 alleged that the respondent at Gisborne Police Station on 2 June 2019, after having been required to furnish a sample of breath pursuant to s 55(1), 'did refuse to comply with such requirement prior to 3 hours elapsing from the driving of a motor vehicle'. In my view, no sensible reader of the charge could be left in any doubt that the gravamen of the charge was a failure to furnish a sample of breath for analysis by a breath analysing instrument. Indeed, reading the charge 'as a reasonable defendant' should, I consider that the respondent can have been left in no doubt as to the subject-matter of the charge and its essential ingredients.[31]

34 The Magistrate's analysis that 'the essential factual ingredients of the offences are missing', and that a 'mere reference to s 55(1)' could mean that the respondent refused to do one or other of a number of enumerated things, must be rejected. The charge did not allege a failure to accompany a police officer. Nor did it allege a failure to remain. Rather, it unambiguously alleged a refusal to comply with a requirement to furnish a sample of breath pursuant to s 55(1) of the RSA. Thus, charge 1 explicitly alleged that the respondent, having been required to furnish a sample of breath under s 55(1) of the RSA, 'did refuse to comply with such requirement' - that is, the requirement to furnish sample of breath under s 55(1) previously mentioned.

35 It must be understood that the offence in charge 1 is created by s 49(1)(e) of the RSA, not s 55(1). The key concepts of the offence thereby created are 'refuses' and 'requirement under section 55(1)'. Under s 55(1), the primary requirement is 'to furnish a sample of breath for analysis by a breath analysing instrument'.[32] Charge 1 correctly states that it is brought under s 49(1)(e), and also recites that the respondent refused to furnish a sample of breath pursuant to s 55(1) after having been required to do so. So much, in my view, is sufficient to bring home to 'a reasonable defendant' the essential factual ingredients of the actual offence charged.

36 I do not intend to deal at length with the other multiple and diverse criticisms made of the adequacy of charge 1, which included, for example, the supposed omission of a reference to the PBT having been conducted by a prescribed device.[33] It is sufficient to repeat the following observations in Bell. In that case it had been submitted that a charge under s 49(1)(f) - exceeding the prescribed concentration of alcohol within three hours of driving - was defective, in that a crucial element of the offence was missing, namely the need for a preliminary breath test to be conducted pursuant to s 53(1) of the RSA before a person was required pursuant to s 55(1) to accompany a police officer and furnish a sample of breath for analysis. Charles JA said:[34]

A breath test under s 55(1) is, no doubt, based upon the operation of s 53, since s 55 empowers a police officer to require a person to furnish a sample of breath for analysis by a breath analysing instrument only if there has been a preliminary breath test under s 53. ... [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 in [22] above,[[35]] and in particular the remarks of both Winneke P[36] and Ormiston JA[37] 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.

37 In the present case, as in Bell, there are a number of facts that will have to be established in proof of the charge under s 49(1)(e) - including that a PBT was conducted and that the relevant requirement was to furnish a sample of sample for analysis by a breath analysing instrument - but it does not follow these facts needed to be included in the charge.

38 Charge 1 was adequately particularised. The Magistrate was wrong to hold otherwise.

39 I also consider that the particulars of charge 3 were sufficient. It alleged that the respondent refused to comply with a requirement to furnish a sample of breath pursuant to s 55(2A) of the RSA. A sensible reader of the charge would appreciate that the requirement under s 55(2A) is 'to furnish one or more further samples', after a requirement has been made under s 55(1). The Magistrate's finding that 'the essential factual ingredients of the offence are missing' therefore cannot be accepted.

40 Before leaving these grounds, I should mention the inclusion in both charges of the words 'prior to 3 hours elapsing from the driving of a motor vehicle'. In my view, these words have no real work to do. But they should be regarded as mere surplusage, not affecting the validity of the charges.

41 For the foregoing reasons, grounds 1, 4 and 6 must succeed.

42 I also consider that ground 2 - which is directed to the Magistrate's 'extra-curial investigation of other charge sheets to determine the validity of the instant charges' - is made out.

43 As the Magistrate footnoted in his reasons,[38] 'for the purposes of comparison' he had the Magistrates' Court's regional Co-ordinator provide him 'with more than a dozen other files with the same charges'. As a result of comparing those charges with those here under consideration, the Magistrate concluded that 'without exception, they were all more thoroughly particularised than this case'.

44 In my opinion, it was fundamentally wrong of the Magistrate to seek extrinsic information - without recourse to the parties - in order to make an assessment whether the particular charges before him were in proper form.

45 In Gilfillan,[39] a County Court judge had sat on appeal from a decision of the Magistrates' Court convicting the applicant on a charge of refusing a breath test under ss 49 and 55 of the RSA. An issue arose as to whether the relevant charge and summons had been filed within the prescribed period. Without notice to the parties, the judge obtained a computer printout from the relevant Magistrates' Court containing a record of filing which showed that the charge and summons had indeed been filed within the prescribed period. Ultimately, the County Court judge dismissed the appeal. On judicial review, among other things it was held that the rules of natural justice 'were offended and unfortunately very significantly so'.[40]

46 Griekspoor[41] was a case where, in the period intervening between the commencement of a plea in mitigation in relation to traffic charges, and the completion of the plea and sentence, a magistrate privately sought information concerning the appellant's previous convictions interstate and outstanding fines. Allowing an appeal against the sentence imposed by the magistrate, Roberts-Smith observed that[42]

it was not appropriate in the present case for his Worship to privately seek information about the appellant whether from the prosecution, from court records or other sources in the way in which he did. It is a fundamental denial of justice for a court to deal with a defendant on the basis of information privately obtained outside court which has not been disclosed to him and which he has not been given an opportunity to challenge nor explain.

47 Of course, these cases may be distinguished from the present case on the basis that, in Gilfillan the judge's private inquiries were dispositive of the issue touching conviction; and in Griekspoor the information privately obtained bore directly on the appellant's antecedents and the sentence imposed. Both cases, however, underscore the undesirability of a court acting on the basis of privately obtained information, not disclosed to the parties.

48 In SD[43] the appellant had pleaded guilty to, and been sentenced for, sex offences in the County Court. After a plea in mitigation had been conducted, and before sentence, the sentencing judge privately consulted the Diagnostic and Statistical Manual of Mental Disorders, Edition IV-TR ('DSM IV-TR'), the yet to be published Diagnostic and Statistical Manual of Mental Disorders, Edition V ('DSM V') and the International Statistical Classification of Diseases and Related Health Problems published by the World Health Organisation ('ISC'), before expressing surprise at the assessment of risk made by a psychologist in a report tendered on the appellant's behalf. Finding that the judge erred, the Court observed:[44]

Were the judge to consider diminishing the weight to be given to [the psychologist's] opinion as to risk - which it is plain that she did - by reference to material that had not been addressed during the plea, and which the appellant had not been given an opportunity of addressing, and thereby to aggravate the sentence or reject a matter in mitigation, then it was incumbent on the sentencing judge to bring that material to the appellant's attention so that he had an opportunity of producing further evidence or making further submissions.[45] It can hardly be contended that the DSM IV-TR, DSM V or ISC are publications of sufficient notoriety that counsel should reasonably have expected the judge to have had recourse to them in the privacy of her chambers.

It is axiomatic that a judge may not search for, or take account of, information that is not in evidence, save where a fact is of such notoriety that a judge may take judicial notice of it. Mason CJ and Brennan, Deane, Dawson and Gaudron JJ in Re Media Entertainment & Arts Alliance; Ex parte Hoyts Corporation Pty Ltd[46] referred to the undoubted principle that a judge's decision must be made on the basis of the evidence and arguments in the case and not 'on the basis of information or knowledge which is independently acquired'. A court is not entitled to take into account factual material not in evidence without notice to the parties.[47]

The rationale for the prohibition is to be found within the fundamental rule of natural justice that a party is entitled to know the case sought to be made against it and be given an opportunity of replying to that case. The entitlement of a litigant is to a fair opportunity to correct or contradict any relevant material which is prejudicial.[48] As Brennan J stated in Kioa v West:[49]

A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters to his interests which the repository of the power proposes to take into account in deciding upon its exercise.

The fundamental requirement of procedural fairness is that a party who is subject to the possibility of an adverse determination on the basis of any information, whatever its source, must be made aware of the case to be raised against the party, and be afforded an opportunity to respond. The judicial obligation to afford a party reasonable opportunity to present or meet a case[50] is vital both to the reality and the appearance of justice.

49 And as the Court in SD later observed:[51]

Procedural fairness must be upheld for its own sake, as well as for its consequences because 'the experience of the common law [is] that, out of fair and lawful procedures, fair and lawful outcomes will more commonly emerge'.[52] The concern is with the fairness of the procedure adopted rather than the fairness of the outcome; with the decision-making process not the decision.[53]

50 I acknowledge that SD can also be distinguished from the present case on the basis that the information to which the judge had private resort was used to diminish the mitigatory effect of material advanced by the appellant on the plea.

51 The underlying principles that may be drawn from the cases, however, is that, given that a party is entitled to know the case that he or she (or it) has to meet, a judge must not search for, or take account of, information that is not before the court (save where a judge may appropriately take judicial notice of it), and must not use such information in determining the case before him or her, without drawing the information to the affected party's attention and giving that party an opportunity to respond. As has been observed, the concern is with the fairness of the procedure rather than the outcome, and with the decision-making process rather than the decision.

52 Save that the Magistrate asserted that the charges that he had recourse to 'were all more thoroughly particularised' than the charges here under consideration, it is impossible to say anything more about them. Even taking at face value the statement that those were more thoroughly particularised than the charges impugned, so much does not necessarily dictate the conclusion that the present charges were inadequately particularised. As I have said, it is impossible to say anything more about the charges compiled by the Co-ordinator, since their contents were not drawn to the parties' attention, let alone submissions sought by the Magistrate as to whether they should be seen as representing appropriate comparators, or otherwise as influencing a decision concerning the adequacy of the particulars of the two charges under consideration.

53 Ground 2 is, as I have indicated, made out. Given my conclusions on grounds 1, 4 and 6, however, I need not stay to consider whether the error established under cover of this ground alone would have been sufficient to vitiate the Magistrate's decision.

Grounds 3 and 5: No regard to associated documents when deciding on amendment

54 Ground 3 is directed to the contentions that the Magistrate erred in not having any regard to the contents of the Preliminary Brief filed and served upon the respondent (which, so it was argued, fully disclosed the basis of the prosecution case); and ground 5 asserts that the Magistrate erred in finding that any defect could not be cured by amendment (and that the contents of the Preliminary Brief were irrelevant).

55 In light of my conclusions on grounds 1, 4 and 6, it is unnecessary to consider these grounds.

56 The appeal will be allowed; the orders of the Magistrates' Court dismissing charges 1 and 3 will be set aside; and the matter be remitted to the Magistrates' Court to be determined in accordance with the law.

57 I will hear the parties on the question of costs.

[1] Charge 2, which is not relevant to the present proceeding, alleged that the respondent failed to have his probationary driver licence in his possession while driving.

[2] At the hearing, the respondent pleaded guilty to charge 2 and was fined.

[3] See DPP v Fox [2021] VSC 226, [7] (Beale J) ('Fox'). See also R v McGowan; Ex parte Macko & Sanderson [1984] VicRp 78; [1984] VR 1000.

[5] Section 53(3), relating to preliminary breath tests, provides that a person required by a police officer to undergo a preliminary breath test by a prescribed device 'must do so by exhaling continuously into the device to the satisfaction of the police officer'.

[8] Baiada Poultry Pty Ltd v Victorian WorkCover Authority [2015] VSCA 344; (2015) 257 IR 204, 220 [52] (Ferguson and McLeish JJA) ('Baiada').

[9] Baiada, 208 [5] (Ferguson and McLeish JJA). See John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508, 519 ('John L'); Kirk v Industrial Court of NSW (2010) 239 CLR 531, 557-8 [26] ('Kirk').

[10] Southgate Management Pty Ltd v Nitschke [2018] VSC 236, [62]-[64] ('Southgate Management') (citations as in original).

[11] Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531, 557-8 [26] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[12] R v Saffron (No 1) (1988) 17 NSWLR 395, 447; R v Buckett (1985) 132 ALR 669, 673-4.

[13] See Hamra v The Queen [2017] HCA 38; (2017) 347 ALR 586, 592 [20]; PPP v The Queen (2010) 27 VR 68, 80-1 [42].

[15] [1938] NSWStRp 12; (1938) 38 SR (NSW) 153 at 166.

[16] [1902] UKLawRpKQB 143; [1903] 1 KB 56 at 60.

[17] [1937] HCA 77; (1937) 59 CLR 467 at 486-7, 501.

[18] (1968) 88 WN (Pt 1) (NSW) 270 at 280.

[19] [1977] 2 NSWLR 264, at p. 291.

[20] [1977] 2 NSWLR 264, at p. 291-292.

[24] (1964) 81 WN (Pt I) (NSW) 286, at pp. 290, 291.

[25] See also Kirk v Industrial Court of NSW (2010) 239 CLR 531, 557-8 [26].

[27] DPP Reference No 2 of 2001; Collicoat v DPP; Bell v Dawson [2001] VSCA 114; (2001) 4 VR 55, 68 [40] ('Bell'). See also Sheerin v DPP (2021) 95 MVR 291, 297 [27], 301 [50] (Maxwell P, Tate and Kennedy JJA) ('Sheerin').

[28] Smith v Van Maanen (1991) 14 MVR 365, 369 ('Smith').

[29] Or has furnished any further sample required to be furnished under sub-s (2A).

[30] Or, if relevant, being an occupant of or being in charge of a motor vehicle. See s 53(1) of the RSA above at [20].

[31] See paragraph 8 of the Reasons at [21] above.

[32] Cf Sheerin, 300-1 [48]-[51] (Maxwell P, Tate and Kennedy JJA).

[33] Some of the criticisms were trifling. They included alleged failures to: state the time of the offence (as to which see CPA, s 9(2)(a); Fox; Bant v Grant [2021] VSC 276 (Richards J) ('Bant'); sufficiently particularise the place of the offence (see Bant); and state the type of vehicle driven (cf DPP v Collicoat [2000] VSC 368; (2000) 32 MVR 113 (O'Bryan J)).

[34] Bell, 63‑4 [23] (emphasis added) (citations as in original).

[35] The quoted authorities were: Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214, see especially at 219, 222 and 224; Thompson v His Honour Judge Byrne [1999] HCA 16; (1999) 196 CLR 141; Smith, 371; and DPP v Foster [1999] VSCA 73; [1999] 2 VR 643 at 657-8.

[36] [1999] VSCA 73; [1999] 2 VR 643, 657-8.

[38] Footnote 1 to the Reasons at [21] above.

[39] Gilfillan v County Court of Victoria [2001] VSC 360; (2001) 123 A Crim R 433 (Nathan J) ('Gilfillan').

[41] Griekspoor v Scott [2000] WASCA 419; (2000) 23 WAR 530 (Roberts-Smith J) ('Griekspoor').

[43] SD v The Queen [2013] VSCA 133; (2013) 39 VR 487 (Ashley, Redlich and Priest JJA) ('SD').

[44] Ibid 495-6 [36]-[39] (citations as in original).

[45] R v Li [1998] 1 VR 637 at 643.

[46] [1994] HCA 66; (1994) 119 ALR 206 at 210; [1994] HCA 66; 68 ALJR 179 at 182.

[47] International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at 381-3, [146] per Heydon J.

[48] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 569 per Gibbs CJ, 582 per Mason J.

[50] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at 611, [40].

[51] SD, 499 [49] (citations as in original).

[52] NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 62; (2004) 221 CLR 1 at 26, [83] per Kirby J.

[53] Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492 at 514, [60] ('Ucar').