Bchinnati v Connolly & Ors [2014] VSC 623

2 The consolidated charge report produced in the Magistrates' Court on 28 October 2013 sets out the eight charges as they came before that Court on that date:[1]

3 The charges the subject of this appeal are charges 1, 3 and 4. Mr Ian Hone, solicitor for the appellant, deposes that these charges were being defended on the basis that the appellant was not disqualified or suspended from driving at the relevant times.[2] It is common ground between the parties that these charges were the subject of negotiation between Senior Counsel for the appellant and the police prosecutor. Evidently this negotiation was successful and when the matter was called on for hearing the prosecutor sought to amend the three charges, in effect applying to substitute them for three counts of unlicensed driving, contrary to s 18(1) of the Road Safety Act 1986.[3]

4 The plea hearing proceeded on the basis that the orders for amendment had been made and the appellant was convicted and sentenced on that basis.[4] It is clear that the orders for amendment were sought and ultimately (if only purportedly) made with the appellant's consent. It is also clear that they represented a term of an informal plea bargain reached between the parties at the door of the Court and I consider this would have been apparent to the presiding Magistrate, who was informed at the outset that the matters had resolved between the parties with amendments to the charges[5] and that the appellant was in these circumstances prepared to enter pleas of guilty to all charges.[6] The appellant's consent was not reduced to writing.

5 There is some additional background to the present appeal. On 16 March 2011 in the County Court at Melbourne the appellant pleaded guilty to one charge of cultivating a narcotic plant.[7] On 25 March Judge Pullen sentenced the appellant to nine month's imprisonment wholly suspended for a period of fourteen months.[8] Charges 1, 2, 3, 4 and 5 fell within the operational period of that sentence. Charges 1, 3 and 4 as originally laid were capable of breaching that suspended sentence.

6 It is apparent from the transcript of the Magistrates' Court hearing that Senior Counsel for the appellant mistakenly believed that the amended unlicensed driving charges could not trigger such a breach. I accept that from the appellant's perspective a purpose of the negotiations on charges 1, 3 and 4 was to avoid this consequence. It is unclear whether the prosecutor was aware of that purpose.

7 As a result of the convictions recorded on 28 October 2013 a Breach Summons for breach of the suspended sentence was filed in the County Court on 12 March 2014. The first return of that summons was adjourned at the request of the appellant. This request was received by email of 3 April 2014, from Senior Counsel to the associate to Judge Pullen:

...An adjournment is sought in this Breach matter by reason of what is perceived to be a technical error.

I appeared on behalf of Mr Bchinnati and put an argument forward that was accepted; causing an amendment to the charges. Those amendments may well have been made out of time and I failed to take that point; thus exposing my client to these proceedings. If what I have said be right then I am gravely embarrassed. Naturally my client wants these matters properly investigated and new counsel will have to be engaged.

8 This proceeding has a strategic dimension. If Mr Hone's first affidavit is taken at face value, it is clear that Senior Counsel was aware of the potential errors in the Magistrates' Court orders before the receipt of the Breach Summons on 12 March. Until that date it had been the view of the appellant's legal practitioners that 'in light [of] the erroneous charges the Crown would not pursue breach proceedings' and the appellant had been advised on that basis.[10] This appeal was commenced only after it became apparent to the appellant's legal representatives that a) the unlicensed driving charges were capable of triggering breach proceedings and, b) the Crown was in fact bringing those proceedings.

9 A criminal proceeding in the Magistrates' Court is commenced by, inter alia, the filing of a charge sheet containing a charge.[11] Historically, the time limit for the filing of a charge-sheet for a summary offence was 12 months after the date on which the alleged offence was committed.[12] Amendments to the charge after the expiration of this period were permissible provided they did not have the effect of charging a new offence. So much was unequivocally held by the Court of Appeal in DPP v Kypri, for example, which considered the amendment power conferred by s 50 of the Magistrates Court Act 1989:

The rule is that an amendment which clarifies a charge is permissible and an amendment which goes further than that is not. So, an amendment may be permitted out of time when, despite the amendment, the offence charged stays the same. But an amendment will not be allowed out of time if it would result in the formulation of a new and different charge. The latter is treated as an impermissible attempt to avoid the limitation period.[13]

10 This gloss has been taken up by the provisions of the Act that deal with orders for the amendment of a charge-sheet. Section 8 of the Act 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.

[...]

11 Subsection (4) then sets out the circumstances in which it will be permissible to amend the charge sheet after the expiration of the limitation period. They are in substance the circumstances described in Kypri and are conceded to have no bearing on the outcome of this appeal.

12 The time limit for the purposes of s 8(3) is provided by s 7:

7 Time limits for filing of 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.

13 It will be apparent that the relevant provisions on this appeal are ss 8(1) and (3) and s 7(1)(b).

14 The appellant brings this appeal on a question of law from a final order of the Magistrates' Court pursuant to s 272 of Act. An Associate Justice of this Court has granted the appellant leave to bring this appeal out of time.[14]

15 The four grounds of appeal can be reduced to the following:

the Court erred when it purported to amend the three charges because those amendments a) had the effect of charging new summary offences, b) were made more than 12 months after the alleged offending, and c) were not made with the accused's written consent. The Court does not have the power to amend a summary charge in those circumstances.

16 The Crown concedes that the Court fell into error when it purported to amend the charges but argues that that error does not invalidate the orders for amendment. The Crown characterises the errors as failures to comply with a condition regulating the exercise of a statutory power, that condition (the accused's written consent) being provided at s 7(1)(b). It argues that despite the unlawfulness of those amendments the relevant provisions do not manifest an intention to invalidate any act that fails to comply with the condition. It relies in this regard on the well-known principles set out Project Blue Sky v Australian Broadcasting Authority.[15]

17 To the extent that jurisdictional error and invalidity are material to an appeal brought pursuant to s 272 of the Act, and to the extent that s 8(3) and/or s 7(1) are conditions regulating the power to amend a charge-sheet, the appellant submits that the purpose of the Act is such that compliance with those provisions is a precondition of the valid exercise of the statutory power to amend.

18 The parties also made submissions on the form of orders, to which I will turn should it be appropriate.

19 The Court purported to amend the charges under s 8(1) in a manner that had the effect of charging a new offence. Section 8(1) read together with s 8(3) does not permit such an amendment after the expiration of the period within which a proceeding for the offence may be commenced. In this case, that period was 12 months unless the accused gave written consent. Those 12 months had passed and the appellant did not give written consent. It follows that the Court erred in amending the charges because it did not, in the circumstances, have the power to do so.

20 Much has been said in argument about the validity of the amendments and much of this in reliance on Project Blue Sky. To my mind this discussion is misconceived or unnecessary for two reasons. The first is that if the amendments under s 8(1) are invalid this is because the Court acted beyond jurisdiction when it purported to make an order of a kind which it lacked power to make: the power at s 8(1) is carefully circumscribed by s 8(3), which codifies the rule that the power to amend a charge out of time does not extend to the formulation of a new and different charge. This is the kind of garden variety jurisdictional error contemplated by Craig v South Australia[16] and Kirk v Industrial Commission of New South Wales[17] and, in my view, is not a case of non-compliance with a condition regulating the exercise of a statutory power of the kind contemplated by Project Blue Sky.[18]

21 The second, and less academic, reason is that it is immaterial on an appeal on a question of law brought pursuant to s 272(1) of the Act that the relevant error might not amount to jurisdictional error.[19] While orders in the nature of the prerogative writs will only go to remedy an invalid exercise of a statutory power (because invalidity is the legal effect of jurisdictional error) an exercise of the power may be valid but still unlawful (an error within jurisdiction).[20] Provided the appellant makes out an error of law, and provided that error is 'involved' in the final order from which the appeal is brought, the appeal will succeed.[21] If there are to be consequential orders they will be made under s 272(9) of the Act. Such orders are not in the nature of prerogative relief.

22 In this case there was no suggestion that the orders convicting and sentencing the appellant were not final orders. The error, which was to purportedly amend the charges where the Court did not have the power to amend the charges, was involved in those orders because the Court proceeded to convict and sentence the appellant on three charges which were not lawfully (or validly) before it, or because it proceeded to convict and sentence the appellant on three charges which were not before it at all. Put another way, the error 'necessarily underpinned' the final orders for conviction and sentence.[22]

23 Although this case did not turn on the character of the errors, it will be apparent from my reasons at [19] and [20] that I consider there are clear cases for jurisdictional error and invalidity in respect of the orders for amendment and, it follows, in respect of the final orders for conviction and sentence. The one thing follows the other: if the orders for amendment were beyond jurisdiction they are invalid and arguably have no legal effect;[23] if those orders do not have legal effect the Court proceeded to convict and sentence the appellant on three charges that, at law, were not before it. Alternatively, and to the extent that an invalid order for amendment does have legal effect,[24] it is beyond the powers of the Magistrates' Court to convict and sentence an accused on a charge that is not validly before it.

What, if any, orders should go to remedy the error?

24 It was common ground between the parties that, in the event the appeal was successful, orders ought be made setting aside the convictions on charges 1, 3 and 4, as amended, together with the order or orders imposing the aggregate sentence on the balance of the charges. Thereafter, the parties diverge on the question of orders.

25 The appropriate course, the Crown submits, would be to remit charges 1, 3 and 4, in their original form, to the Magistrates' Court for redetermination and the balance of the charges for resentencing. The Appellant resists this course.

26 First, the appellant submits that the amendments amounted in fact to the withdrawal and abandonment of charges 1, 3 and 4 prior to adjudication. It follows, the appellant submits, that if the convictions and sentences are set aside, and the matter is remitted to the Magistrates' Court, those charges will not be before that Court. The Crown submitted that there was no basis to the submission that the charges were in fact withdrawn.

27 Second, and in the alternative, the appellant submits that in seeking to amend the charges the prosecution represented to the accused that it 'abandoned the argument that the original charges could be made out.'[25] It would, the appellant says, be contrary to justice to permit the Crown to resile from that representation. The Crown's rejoinder to this submission was not clear to me.

28 Third, the appellant submits that this Court does not have the power to set aside the orders for amendment because those orders are not 'nullities.' The Crown joined issue with the appellant on the question of whether such an order would be a 'nullity'.

29 I have allowed the appeal and propose to set aside the convictions on charges 1, 3 and 4 and the aggregate sentence imposed across all charges. That I do this is a measure of the seriousness of the consequences for the accused if he is found to have breached the terms of his suspended sentence.

30 It would be another thing, however, to direct an acquittal on charges 1, 3 and 4 or to declare those charges to have been abandoned. I accept that if the effect of an order for amendment is to charge a new offence the equal but opposite effect of that order must be that the charge in its original form ceases to be before the Court. In my view, however, it is not possible to disaggregate the order for amendment from its practical consequences. There is only one power at s 8(1) of the Act, which is the power to amend a charge sheet; it does not provide for two discrete powers to withdraw and then add a charge on that charge sheet. It follows that the practical consequence of setting aside the order for amendment is to set aside what the appellant has described, in loose terms, as the withdrawal or abandonment of the charges in their original forms.

31 I also do not accept the appellant's alternative argument on abandonment. First, applying to amend a charge to substitute a lesser alternative charge is a strategic decision that does not necessarily represent a view about the strength or weakness of the case originally brought against the accused. Second, I do not accept that justice requires, in the circumstances that I have set out, that the prosecution in effect be estopped from arguing that the three charges in their original form can be made out.

32 In this State, almost every day, the police and the Office of Public Prosecutions conduct negotiations with people accused of criminal offences that result in the resolution of unnecessary criminal proceedings. The criminal justice system could not function without this practice, which in my experience is almost invariably carried out in good faith, as it was in this case.

33 The orders that the appellant now impugns were the result of such a negotiation. They are impugned because the appellant misapprehended the consequences of that negotiation or plea bargain for his suspended sentence. There is no evidence to suggest that a term of that bargain precluded the bringing of breach proceedings; the bargain was struck because the appellant was independently though incorrectly advised that the Crown could or would not bring such proceedings in the circumstances. If the product of the plea bargain is to be set aside, it should be set aside totally, and not merely those parts of it that suit the appellant.

34 As to the issue of this Court's power to set aside the orders for amendment, it is unnecessary to determine whether those orders, if they are invalid, are 'nullities.' Section 272(9) provides that after hearing and determining the relevant 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 order or orders must be appropriate in the circumstances of the case, but neither nullity nor invalidity are preconditions of that broad remedial power.

35 With those observations in mind, I propose to remit the matter to the Magistrates' Court for redetermination and, to the extent necessary, for resentencing. As I said in Saric in remarkably similar circumstances:

If I remit the matter [the Court] will retain [the relevant power] and a judge of that Court will consider any application to amend the charge. If the amendments are allowed [and within power] the matter can then finally be heard on its merits. I have remarked that her Honour was led into error by a confluence of factors, including the consent by the plaintiff's representatives to the proposed amendments [...]. In the circumstances, I consider that it would be unjust simply to direct the County Court to dismiss the [relevant] charge. Such an outcome would mean that that charge would never be heard on its merits and that the applicant would benefit from the alleged negligence of his former legal representatives.[26]

Pursuant to s 272(9) of the Criminal Procedure Act 2009:

(1) The orders made by Magistrate O'Callaghan on 28 October 2013 which purported to convict the appellant, Omar Bchinnati, of three counts of unlicensed driving contrary to s 18(1) of the Road Safety Act 1986 are set aside (charges 1, 3 and 4).

(2) The order or orders made by Magistrate O'Callaghan on 28 October 2013 which purported to sentence the appellant, Omar Bchinnati, to pay an aggregated fine of $3000.00 are set aside.

(3) The orders pursuant to which Magistrate O'Callaghan amended or purported to amend Charges 1, 3 and 4 as they were originally drafted are set aside.

(4) Charges 1, 3 and 4 as they were originally drafted are remitted to the Magistrates' Court for redetermination according to law.

(5) Charges 2, 5, 6, 7 and 8 are remitted to the Magistrates' Court for resentencing according to law.

(6) I make no order with respect to the constitution of the Court to which the matter is now remitted.

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

[1] Second Affidavit of Ian George Hone, dated 24 September 2014, [5] and Annexure 'B'. The table now set out is adapted from that consolidated charge report.

[2] Affidavit of George Hone, dated 14 April 2014, [3].

[3] Affidavit of Adrian Mark Castle, dated 3 October 2014, Exhibit 'OPP-4': 'Corrected Transcript', 3.

[4] Affidavit of George Hone, dated 14 April 2014, Annexure 'D': 'Certified Extracts'.

[5] By the Prosecutor: Affidavit of Adrian Mark Castle, dated 3 October 2014, Exhibit 'OPP-5': 'Corrected Transcript', 2 ('Magistrates Court Transcript').

[6] By Senior Counsel for the appellant: Magistrates Court Transcript, 3.

[7] Affidavit of Adrian Mark Castle, dated 3 October 2014, [4]-[5]; DPP v Bchinnati, Omar [2011] VCC 313.

[9] Affidavit of Adrian Mark Castle, dated 3 October 2014, [10].

[10] Affidavit of George Hone, dated 14 April 2014, [8]-[9].

[11] Criminal Procedure Act 2009 (Vic), s 6(1)(a).

[12] Magistrates' Court Act 1989, s 26(4) (repealed).

[13] DPP v Kypri [2011] VSCA 257; (2011) 33 VR 157, [23] (Nettle JA, with Ashley and Tate JJA agreeing) (citations omitted); see, also, Broome v Chenoeth (1946) 73 CLR 583, 601; Ciorra v Cole [2004] VSC 416; (2004) 150 A Crim R 189.

[14] Criminal Procedure Act 2009 (Vic), s 272(8).

[15] Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [91] ('Project Blue Sky').

[16] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 177 ('Craig'): 'An inferior court falls into jurisdictional error if [inter alia] it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist.'

[17] Kirk v Industrial Commission of New South Wales (2010) 239 CLR 531.

[18] Together, s 8(3) and 7(1) do not regulate the exercise of an existing power; they determine whether in the circumstances there is a power.

[19] See, for a discussion of the analogous s 109 of the Magistrates Court Act 1989 (Vic), Kuek v Victoria Legal Aid [2001] VSCA 80; (2001) 3 VR 289, 292-293: '...error of law is the very foundation of an appeal from the Magistrates' Court to this court under s.109 of the Magistrates' Court Act.'

[20] With the exception of certiorari for error of law on the face of the record: Craig [1995] HCA 58; (1995) 184 CLR 163, 175-176.

[21] Criminal Procedure Act 2009 (Vic), s 272(1); See, on the construction of such analogous appeal provisions as s 109 of the Magistrates Court Act, Transport Accident Commission v Hoffman [1989] VicRp 18; [1989] VR 197, 199; Barton v Estate Agents Licensing Authority [1998] 1 VR 164; Paradise Constructors Pty Ltd and Anor v Lofts Quarries Pty Ltd [2003] VSC 370, [19] ('Paradise Constructors'); Melbourne Cricket Club v Clohesy [2005] VSC 29, [68].

[22] Paradise Constructors [2003] VSC 370, [20].

[23] Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, 614-615 [51] (Gaudron and Gummow JJ): 'A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all'; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 506 [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

[24] Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288; (2003) 145 FCR 1, 15-16; see, also, DPP v Edwards [2012] VSCA 190, 58 [190] (Weinberg JA and Williams AJA).

[25] This submission, which was made in writing, was abandoned and then reinstated following the hearing of the appeal.

[26] Saric v Elliott & Anor [2013] VSC 509, [30].