Appellant v Respondent

1 On 13 June 2019, Matthew Fox, the Respondent, was driving a Porsche Cayenne AZI207 on the Princes Freeway in Nar Nar Goon when he was intercepted by police and issued with a traffic infringement notice for speeding (alleged speed 135kph).

2 He filed a Notice of Objection, requesting that the matter be dealt with by the Magistrates' Court.

3 On 6 August 2019, a charge and summons was issued by the Informant.

4 The charge alleged a contravention of r 20(2) of the Road Safety Road Rules 2017 (Vic) which provides:

A driver of a vehicle other than a heavy vehicle must not drive at a speed which exceeds the speed-limit applying to the driver for the length of road where the driver is driving by 35 kilometres per hour or more but less than 45 kilometres per hour.

The accused at Nar Nar Goon on 13/06/2019 being the driver of a vehicle, other than a heavy vehicle, on a length of road, namely Princes Freeway, did drive at a speed that exceeded the speed limit for that length of road by 35 kilometres per hour or more but less than 45 kilometres per hour, to which a speed limit of 100 kilometres per hour applied to the driver for the length of road where the driver was driving between Interchange Road and Snell Road. Detected Speed 137km/h Alleged Speed 135 km/h.

6 There is no 'Interchange Road' in Nar Nar Goon. I was informed by the Appellant that the Informant was referring to an on ramp on the relevant section of the Princes Freeway.

7 A preliminary hearing regarding the validity of the charge was conducted at the Dandenong Magistrates' Court on 30 September 2020. The Respondent argued that the charge was defective in four respects: it failed to specify (i) the time of the offence; (ii) the kind of vehicle; (iii) the basis of the speed limit of 100kph; and (iv) it incorrectly described the place of the offence. The learned Magistrate found that the charge was defective in respect of (i) time and (iv) place. He said 'I propose to strike it out'. However, the court record states that the charge was 'dismissed'. So as not to fall between two stools, the Appellant brought proceedings under s 272 of the Criminal Procedure Act 2009 (assuming a final order was made dismissing the charge) and Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (assuming the charge was merely struck out). Either way, I have the power to quash the order of the Magistrate and remit the matter for a rehearing if I conclude that the Magistrate erred. Given the court record indicates that the Magistrate 'dismissed' the charge and it was the Magistrates' clear intention to bring the proceedings against the Respondent to an end,[1] I proceed on the basis that he made a final order and deal with the matter under s 272.

8 At this point, it is appropriate to set out the applicable statutory provisions, insofar as they are relevant.

9 All references to sections and schedules are to the Criminal Procedure Act 2009 (Vic), unless otherwise indicated.

6 Commencement of a criminal proceeding in the Magistrates' Court

(1) A criminal proceeding is commenced -

(a) by filing a charge-sheet containing a charge with a registrar of the Magistrates' Court; or

...

(c) if a summons is issued under section 14, at the time the charge-sheet is signed.

...

(3) A charge-sheet must -

(a) be in writing; and

(b) be signed by the informant personally; and

(c) comply with Schedule 1.

7 Time limits for filing a charge-sheet

(1) A proceeding for a summary offence must be commenced within 12 months after the date on which the offence is alleged to have been committed except where -

(a) otherwise provided by or under any other Act; or

(b) the accused gives written consent, and the DPP or a Crown Prosecutor consent, to the proceeding being commenced after the expiry of that period.

(2) ...

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.

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.

Schedule 1 - Charges on a charge-sheet or indictment

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.

...

7 Descriptions generally

Subject to any other provision of this Schedule, if it is necessary to describe anything in a charge, it is sufficient to describe the thing in ordinary language in a manner that indicates with reasonable clarity the thing referred to.

10 As to time, the Appellant submitted it was sufficient for the charge to particularise the date, as is the case with most charges.

11 In the alternative, the Appellant relied on s 9(2) which provides that, unless time is an essential element of the offence, a charge is not invalid by reason only of the charge omitting to state the time of an alleged offence. The Appellant submitted that time was not an essential element of the offence.

12 As to place, the Appellant submitted it was sufficient for the charge to particularise the road (Princes Freeway) and the locality (Nar Nar Goon) where the alleged speeding occurred. The inclusion in the charge of 'between Interchange Road and Snell Road' was surplusage.

13 Whilst the capitalisation of 'interchange road' was confusing, as no such road existed, the Appellant submitted that it did not render the charge invalid and should have been dealt with by a simple amendment.

14 The Appellant relied heavily on Foster v Harris[2] and Gigante v Hickson.[3]

15 In Foster v Harris, Foster was convicted in the Magistrates' Court of speeding contrary to r 20 of the Road Rules. The actual charge read as follows:

The accused at Myrtleford at 9.9.10, being the driver of a vehicle on a length of road, named Prince St, in a school zone, to which a school zone sign indicating 40 kilometres per hour applied, did drive over the speed-limit applying to the driver for the length of road where the driver is driving, between O'Donnell Ave and William Street. Detected Speed 80 kph. Alleged Speed 78 kph.

16 Foster submitted on appeal that the charge should have particularised the time of day of the alleged speeding and that it was a school day: it was only if Foster was driving between 8.00am and 9.30am or between 2.30pm and 4.00pm on a school day that the school zone speed limit of 40kph applied. In rejecting this submission, Williams J expressly referred to clause 1(b) of the First Schedule, which requires a charge to contain particulars which give reasonable information as to the nature of the charge. She also referred to common law requirements with regard to the particularisation of charges, which she clearly understood as elucidating the meaning of the statutory requirement of 'reasonable information'. Williams J said this:

[9] In Kirk v Industrial Relations Commission of New South Wales[4], it was held that:

The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge[5]. ...The common law requirement is that an information, or an application containing a statement of offences, "must at the least condescend to identifying the essential factual ingredients of the actual offence"[6]. These facts need not be as extensive as those which a defendant might obtain on an application for particulars[7].

[10] As Charles JA (with whom Winneke P and Chernov JA agreed) stated in Director of Public Prosecutions Reference No 2 of 2001,[8] it is necessary to distinguish between those essential factual ingredients of the alleged offence, which must appear in a charge, and other facts which must be proved by the prosecution, to which it is not necessary to refer in the charge. There is no technical verbal formula which can be used to determine what those essential ingredients are.[9]

...

[19] ... the two essential ingredients of the charged offence to be included in the charge are the alleged facts that the vehicle was driven by the appellant and that she drove it over the speed-limit applicable to her on that particular section of Prince Street. It was not necessary to include in the charge express reference to the factual basis on which the applicable speed-limit was to be determined, such as that she was driving on a declared school day or during the period referred to on the school zone sign. Such matters, and other relevant requirements of the Rules might have been the subject of requests of particulars of the alleged applicability of the 40 km per hour speed-limit to the appellant.

17 The Appellant submitted that Foster v Harris was correctly decided and puts paid to the claim that the charge in the present case should have included the time of the alleged offending, not just the date.

18 In Gigante v Hickson, Gigante was administered a preliminary breath test in Deer Park, which was positive, and was required to undergo breath test analysis at a booze bus located in Yarraville, resulting in a reading of 0.110%. The charge, however, read as follows:

The defendant at Deer Park on 31/05/96 did within 3 hours after driving a motor vehicle furnish a sample of breath for analysis by a breath-analysing instrument pursuant to s 55(1) of the Road Safety Act 1986, and

(1) The result of the analysis recorded or shown by the breath-analysing instrument indicated that more than the prescribed concentration of alcohol was present in his/her blood; and

(2) The concentration of alcohol indicated by the analysis to be present in his/her blood was not due solely to the consumption of alcohol after being in charge of the motor vehicle.

19 Purportedly exercising the statutory power of amendment under s 50(1) of the Magistrates Court Act 1989 (Vic),[10] the Magistrate, on application by the prosecutor, amended the location particularised in the charge to read 'Yarraville' and, after a contest, convicted Gigante. On appeal, Batt JA, with whom Tadgell and Callaway JJA agreed, said this:

[14] The offence under para (b) of s 49(1) of the Road Safety Act of driving with more than the prescribed concentration of alcohol present in the blood clearly occurs at the place of driving. Equally clearly, the presently relevant offence, that under para (f) of s 49(1), occurs at the place where the sample is furnished. In the present case that place was undoubtedly Yarraville. But the place of offending ordinarily at least is not, and in the present case in particular was not, an essential element of the offence under para (f) and so ordinarily is not, and here was not, a material allegation. Offences where the place of offending is an essential element or a material allegation are exemplified by that of dangerous driving on a public street and that of conducting a noxious business, say, in a town or on land zoned for residential use or within so many kilometres of the principal post office in the City of Melbourne. But, as Parmeter v Proctor shows, even the identity of the street where the dangerous driving allegedly occurred is not material. Offences such as I have instanced are quite different from the offence here in question.

[15] That the place of offending was not essential or material in the instant case does not mean that it was not an important particular to which the appellant was entitled as a matter of procedural fairness. But he did not need to ask for it as it was supplied in the amendment. If he had been misled by the original charge or if the amendment had caught him by surprise, he would, other things being equal, have been entitled to an adjournment, but no such prejudice or embarrassment was suggested.

[16] This is not a case where the original charge was defective in that it failed to allege an offence known to the law or was incomplete, or where it contained a latent ambiguity or duplicity. It merely named a suburb which the evidence to be led would show to be erroneous. Since the suburb was not essential to the offence, the substitution of a different suburb did not amount to charging a different offence. The offence remained the same, though a particular (included in the charge) was altered...(footnotes omitted).

20 The appellant submitted that if naming the wrong suburb in a charge was capable of amendment in Gigante v Hickson, then wrongly capitalizing the words 'Interchange Road' in the present charge was capable of amendment too. It was submitted the charge against the appellant ought not to have been dismissed because of that comparatively minor error.

21 The Respondent submitted that the Criminal Procedure Act 2009 (Vic) has changed the law in relation to the particulars required for a valid charge.

22 As to time, he submitted that merely particularising the date of an alleged speeding offence is now inadequate: the particulars must include the time of day. He submitted that this is 'reasonable information' having regard to modern means for detecting traffic offences, such as speed cameras and the like. For example, a motorist may not be intercepted by police at the time of the alleged offence. He may receive an infringement notice many months afterwards. The inclusion of the time of day will enable or assist the motorist to work out whether he was in fact driving the car at the relevant time.

23 The Respondent submitted that s 9(2) did not assist the Appellant because the words 'by reason only of' limited the scope of s 9(2).

24 As to place, the Respondent submitted that the alleged place of the offending did not exist, as there is no Interchange Road in Nar Nar Goon. The description in the charge of the place of the alleged offending contravened not only cl 1(b) of the First Schedule but also cl 7 which demands 'reasonable clarity'.

25 The Respondent submitted that Foster v Harris was plainly wrong and ought not be followed and that Gigante v Hickson was not concerned with the particulars required by the Criminal Procedure Act 2009 (Vic).

26 The Respondent relied heavily on Wells v Stillman.[11] In that case, Wells, a police officer, was accused of illegally accessing information on the police database. The charge, which alleged a contravention of s 227(1) of the Victoria Police Act 2013 (Vic), read as follows:

The accused at Victoria on 20 March 2017, being a member of Victoria Police, without reasonable excuse, accessed police information contrary to his duty not to access the information.

27 The charge did not particularise the police information in question. On appeal, Quigley J found that it needed to do so to be a valid charge and that the Magistrate had erred in not striking out the charge. Quigley J said this:

[56] In Baiada,[12] the Court of Appeal said although cl 1(b) of sch 1 of the CPA has much in common with the approach of the common law, it has nonetheless affected the common law in that it supplies a statutory test for determining the adequacy of the particulars furnished as part of the charge.[13] In their judgment, Ferguson and McLeish JJA quoted a series of expressions from the common law cases which illustrated the information that is required for a valid charge, including the following:[14]

(a) specifying the time, place and manner of the defendant's acts or omissions;

(b) whatever is necessary to show that the person convicted has done something which brought him within the words of the statute;

(c) the nature of the offence and the manner in which it has been committed; and

(d) the essential factual ingredients of the offence.

[57] The question for determination is not whether the legal components of the charge are pleaded in accordance with cl 1(a) of sch 1 but rather whether compliance with cl 1(b) has been achieved on the facts and context of the offence in question.

[58] In this, it is necessary in applying the statutory definition to have regard to the common law articulation of this issue.

[59] In my view, applying the principles which arise from the cases, to which both parties referred, I have concluded that the charge is invalid in that it insufficiently particularises a key fact or matter being that of the 'police information' which is the subject or foundation of the charge.

...

[63] Here, the police information is not identified at all and without identification of the police information it makes it impossible to determine whether or not accessing the information was contrary to any police duty.

[64] The parties agreed that there is a distinction between particulars required to comply with cl 1(b) and particulars required prior to the hearing or trial. In Baiada the Court identified that additional particulars could be required before trial but were not necessary for the charge to be valid. However, the level of particularisation provided in the charge (as discussed at [23] above) provided the essential factual ingredients.

[65] What is clear from analysis of the cases referred to by the parties is that where the charge has been upheld as valid, the particularisation is greater than the charge in question here. However, in each case the task is to test the charge against the requirements of the offence and it may be a question of degree as to whether the factual ingredients are in any case, sufficiently particularised.

28 The Respondent submitted that the law in relation to the particulars that must be included in a charge has been changed by the Criminal Procedure Act 2009 (Vic) to require more detail.[15] I do not accept that submission.

29 As I said in discussion, whilst there may have been a change in form, there has been no change in substance.[16] As to form, the relevant provisions of the Criminal Procedure Act 2009 (Vic) now stipulate what must be contained in a charge. As to substance, the common law elucidates the meaning of the particulars necessary to give 'reasonable information as to the nature of the charge' (cl 1(b) of sch 1). So much is clear from Baiada Poultry Pty Ltd v Glenister,[17] where Ferguson and McLeish JJA said this:

[5] The issue for determination is whether that charge is valid. The Criminal Procedure Act 2009... requires charge-sheets to contain the particulars that are necessary to give reasonable information as to the nature of the charge. As Robson AJA has observed, the requirements of the CP Act do not supplant the common law requirements. Rather, the common law elucidates what constitutes 'reasonable information'. That is, if the charge is to be valid, the essential factual elements of the offence, in addition to its legal nature, must be identified in the charge. (italics added)

30 It is true that, in Baiada, Ferguson and McLeish JJA also said this:

[13]...The common law is affected by the second requirement of cl 1 [of the First Schedule of the Criminal Procedure Act 2009]. Clause 1(b) supplies a statutory test for determining the adequacy of the particulars furnished as part of the charge."(Italics added)

31 But the use of the word 'affected' in this passage should not be misconstrued: Ferguson and McLeish JJA were not suggesting that the statutory test has changed the substance of the law. They went on to consider various formulations of the common law test but saw no inconsistency between them and the statutory test in cl 1(b) of the First Schedule.[18]

32 In Johnson v Miller,[19] Dixon J (as he then was) spoke of the 'necessity of specifying the time, place and manner of the defendant's acts or omissions', but this much quoted passage[20] has not been understood as establishing a general rule that for a charge to be valid, it must state the time of day that an alleged offence occurred. Indeed, in Johnson v Miller, immediately after the passage just quoted, Dixon J said this: 'The complaint did in fact state the day, the place and the circumstances of the offence, and, until it appeared that according to the complainant during the time particularised many persons were seen coming from the licensed premises, the sufficiency of the complaint would be taken for granted[21]' (italics added).

33 Foster v Harris considered the particulars required for a valid speeding charge in circumstances where the Criminal Procedure Act 2009 (Vic) applied and where the applicable speed limit (40kph) depended on the driving having occurred on a school day during drop off and pick up times. Williams J ruled that it was not necessary for the charge to particularise the time of day of the driving. If it was not necessary to particularise the time of day in such circumstances, a fortiori in the present case. As a matter of comity, I should follow Foster v Harris unless satisfied that it is plainly wrong.[22] In my respectful opinion, Foster v Harris was correctly decided.

34 Failure to state the time of day did not render the present charge invalid.

35 Nor did the inaccuracy in the description of the place of the driving.

36 Here the relevant driving was particularised by reference to the road (the Princes Freeway) and the locality (Nar Nar Goon). That in my view was sufficient. The additional details supplied in the charge (between Interchange Road and Snell Road) were surplusage, although they might have been the proper subject of an application for further and better particulars. In my view, the capitalisation of the words 'Interchange Road' was a minor error that did not invalidate the charge and ought to have been amended under s 8. Gigante v Hickson, although decided under a different statutory regime, supports that conclusion.

37 As regards both time and place, there is nothing in Wells v Stillman that requires a finding that the charge in this case is invalid. In Wells v Stillman, there was no particularisation of the proscribed information at all: that case is clearly distinguishable.

38 Below, the Respondent advanced two other arguments as to why the charge was invalid, neither of which were accepted by the Magistrate in dismissing the charge. Consequently, I am not obliged to deal with them. The Respondent, however, submitted that it would be helpful if I discussed the merits of these alternative arguments, namely, that the charge should have include the type of vehicle[23] and the basis of the speed limit of 100kph. All I will say is that neither argument seems to me to be supported by the authorities.

39 I order that the decision of the Magistrate dismissing the charge be quashed and that the matter be remitted to the Magistrates' Court to be determined in accordance with the law.

[1] See R v McGowan; Ex parte MacKo & Sanderson [1984] VicRp 78; [1984] VR 1000 for a helpful discussion of the distinction between the dismissal and striking out of a charge.

[2] [2012] VSC 637.

[3] (2001) 3 VR 296; [2001] VSCA 4.

[4] (2010) 239 CLR 531, 557 [26] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[5] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 489 (Dixon J).

[6] John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508, 520 (Mason CJ, Deane and Dawson JJ).

[7] De Romanis v Sibraa [1977] 2 NSWLR 264 at 291-292, referred to in John L Pty Ltd [1987] HCA 42; (1987) 163 CLR 508, 520.

[8] [2001] VSCA 114; (2001) 4 VR 55, 54 [19].

[9] John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508, 520 (Mason CJ Deane and Dawson JJ).

[10] 'On the hearing of a proceeding the [Magistrates'] Court must not allow an objection to a charge, summons or warrant on account of any defect or error in it in substance or in form or for any variance between it and the evidence presented in the proceeding but the Court may amend the charge, summons or warrant to correct the defect or error.'

[11] [2020] VSC 51.

[12] Baiada Poultry Pty Ltd v Victorian WorkCover Authority (2015) 257 IR 204; [2015] VSCA 344.

[13] Ibid 210 [13] (Ferguson and McLeish JJA).

[17] (2015) 257 IR 204; [2015] VSCA 344 (Baiada).

[18] Baiada, ibid, [14]-[15]. Note too what Robson AJA said in Baiada at [57] ('I find that common law principles apply in determining the validity of the charge...with the statutory framework' and at [155] (In my opinion, consistently with the approach of Dixon J in Johnson v Miller, the requirement in the Criminal Procedure Act 2009 (Vic) that a charge must state the offence that 'the accused is alleged to have committed; and contain the particulars, in accordance with clause 2, that are necessary to give reasonable information as to the nature of the charge' should not be construed as requiring any less information than that required at common law.')

[19] [1937] CLR 467, 486.

[20] See, for example, Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, 558-559 [29] and Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344, [15].

[21] [1937] CLR 467, 486.

[22] Engebreston v Bartlett [2007] VSC 163, [63].

[23] I note that the charge sheet included the registration number of the Porsche.