Fazal v Beauchamp & Anor [2021] VSCA 103

1 On New Year's Day 2018, a car driven by the applicant was intercepted by police. The applicant underwent a preliminary breath test and then accompanied police to the Dandenong police station. When there, she refused to provide a sample of her breath for analysis and left the station. On 2 March 2018, she was charged with an offence under s 49(1)(e) of the Road Safety Act 1986 of refusing a requirement to remain at the police station for the purpose of a breath test.

2 The charge was in the following form at the commencement of the criminal proceeding:

The accused at Dandenong on 1st of January 2018 having been required to furnish a sample of breath pursuant to section 55(1) of the Road Safety Act 1986, and for that purpose she accompanied a police officer to a place namely Dandenong Police Station, where the sample of breath was to be furnished, she was further required by a police officer to remain at that location, she did refuse to comply with such requirement to remain at that location prior to undergoing a breath test and being given the certificate under section 55(4) of the Road Safety Act 1986 or three hours elapsing since the driving of a motor vehicle whichever is sooner.

3 On 23 August 2018, she was convicted of that charge in the Magistrates' Court.

4 The applicant appealed the conviction and sentence imposed to the County Court under s 254 of the Criminal Procedure Act 2009 ('CPA'). Within 12 months of the alleged offence occurring, the informant applied for, and was given, leave in the County Court to amend the charge under s 8 of the CPA.

5 The charge, as amended in the County Court, remained a charge under s 49(1)(e) but for a different offence based on a different requirement under s 55(1).[1] As amended, the charge read:

The accused on 1 January 2018 at Dandenong being a person required to undergo a preliminary breath test under s 53 and being a person who having undergone the preliminary breath test and then being required to furnish a sample of breath for analysis then did refuse to furnish a sample of breath for analysis in accordance with a request made by the member or officer pursuant to s 55(1) prior to 3 hours elapsing since driving a motor vehicle.

6 Following a hearing in the County Court, the applicant was convicted of the amended charge. The applicant sought judicial review in the Trial Division on a number of bases. Relevantly, for present purposes, she contended that s 8 of the CPA did not permit the amendment because the effect of the amendment was to substitute a new and different charge and this could not be done under s 8. The judge who heard the proceeding rejected that contention.[2] He held that the amendment was authorised by s 8.

7 The applicant seeks leave to appeal on the ground that the judge erred:

(a) in holding that s 8(1) Criminal Procedure Act 2009 permits a court to delete or strike-out a charge for one offence and replace it with a charge for a different offence, and

(b) in failing to hold that s 6(1)(a) Criminal Procedure Act 2009, which requires a charge to be filed with a registrar of the Magistrates' Court, prevented a court from commencing a proceeding for a different offence by substituting charges during the running of a case.

8 Section 5 of the CPA provides for the ways in which a criminal proceeding may be commenced, including the filing of a charge-sheet in accordance with s 6.[3] Section 6 relevantly provides that a criminal proceeding is commenced by filing a charge-sheet containing a charge with a registrar of the Magistrates' Court.[4] The charge-sheet must be in writing, signed by the informant personally, and must comply with Schedule 1 to the CPA.[5] Subject to some exceptions, 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.[6]

9 Schedule 1 to the CPA provides for the contents of a charge-sheet. They include a requirement that a charge state the offence that the accused is alleged to have committed and contain the particulars that are necessary to give reasonable information as to the nature of the charge.

10 Section 8 of the CPA provides:

(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.

11 As noted, the amendment to the charge occurred in the County Court in the appeal brought by the applicant from the conviction she sustained in the Magistrates' Court within 12 months of the alleged offence occurring. In its terms, s 8 is directed to the powers of the Magistrates' Court. Section 256 of the CPA provides that an appeal under s 254 'must be conducted as a rehearing'[7] and on the hearing the County Court 'may exercise any power which the Magistrates' Court exercised or could have exercised'.[8]

12 The applicant accepted in this Court that if a magistrate could have permitted the amendment under s 8 at first instance then the power was available to a judge of the County Court on an appeal under s 254 of the CPA. Accordingly, the issue in this Court turns only on the construction of s 8.

13 The applicant submits that the amendment in this case was only authorised if it came within the power to amend in s 8(1) of the CPA. She submits that an amendment which substitutes an entirely different offence - that is, one with different essential elements - is not permissible.

14 In the course of oral submissions, the applicant accepted that s 8(3) is premised on the existence of power to permit an amendment which has the effect of charging a new offence but she submits that, for the purposes of s 8, a 'new offence' is confined to an amendment that cures or perfects an existing but invalid charge. That is, s 8 permits an amendment to add a missing element or correct a failure to fully describe the offence. She submits that the phrase 'new offence' does not extend to a different charge.

15 She submits that the amendment had the effect of withdrawing the existing charge and replacing it with an entirely different charge and to permit this would subvert the requirement that the proceeding be commenced by filing a charge-sheet under s 6(1) of the CPA. She contends that, as a matter of substance, the amendment resulted in an entirely new charge which could only be done at the commencement of the proceeding.

16 She relies on the following passage in the judgment of T Forrest J in Bchinnati v Connolly:[9]

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.[10]

17 The judge rejected the argument. He was correct to do so.

18 Starting with the text, it is clear that s 8(1) confers a broad power of amendment. An amendment to a charge-sheet may be made 'at any time' and 'in any manner' thought necessary. Further, the amendment permitted by s 8 is to the charge-sheet and not to a charge. Self-evidently, an amendment to a charge-sheet may involve amendment to an existing charge, but would also allow the addition of a charge without any alteration to existing charges contained on the charge-sheet. The ability to add an additional charge is made explicit by the terms of s 8(3) which is predicated on an amendment that has the effect of charging a new offence. The CPA allows for multiple charges on the same charge-sheet.

19 As the judge noted in his reasons,[11] the amendment power is subject to some specific limitations. First, an amendment cannot be allowed if it cannot be made without injustice to the accused.[12] Second, an amendment to the charge-sheet cannot be made if it has the effect of charging a new offence after the expiry of any limitation period.[13]

20 Beyond those express limitations, there is no reason to give the broad language a confined or narrow operation. Indeed, it would be wrong to do so, as was explained by Gaudron J in Knight v FP Special Assets Ltd,[14] as follows:

It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant.[15]

21 The applicant seeks to confine the text of s 8 by arguing that the power to add a new charge (which she accepts is conferred by s 8) is limited to perfecting an invalid charge. That submission cannot be accepted.

22 Section 8(3), and the use of the phrase 'new offence', arises in a particular context and is designed to prevent an amendment that would infringe a limitation period. The phrase 'new offence' is used to distinguish between an amendment to a charge already on the charge-sheet, including an amendment that overcomes a defect in the formulation of an existing charge, and an amendment that introduces a new offence. The phrase 'new offence' does not carry with it any general limitation on the scope of the power to amend in s 8(1) and merely informs the exercise of the power in the context of limitation periods.

23 The applicant's submission also gives the phrase 'new offence' a strained and improbable construction. As a matter of ordinary language, a 'new offence' is an offence that is not already contained on the charge-sheet. It is capable of extending to both a different type of offence and a different instance of a breach of the same offence provision. It might also extend to the circumstance in which the description of the offence on the charge-sheet is incomplete and requires amendment in order for it to be perfected. However, there is no reason to confine it to that situation.[16]

24 The only rationale offered by the applicant for reading down the power in s 8 was an argument based on an asserted inconsistency with s 6 which requires a proceeding to be commenced by the filing of a charge-sheet. The applicant says that the addition of a charge for a different offence is at odds with s 6 because, on her submission, the charge had never been commenced.

25 Section 6 provides no assistance to the applicant's argument. It is concerned with the commencement of a criminal proceeding, not the commencement of a charge, a distinction that the applicant's argument failed to grapple with. Further, s 8(2) provides that if a charge-sheet is amended by an order under s 8(1), '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'.

26 Finally, the applicant's reliance on Bchinnati is misplaced. In that case, the appellant had been charged with a number of driving offences, including one charge of driving whilst disqualified and two charges of driving whilst authorisation was suspended. Following negotiations, those charges were amended by substituting three charges of unlicensed driving. The amendment was made more than 12 months after the offences were committed and thus fell within the exception in s 8(3). The appellant in that case contended that the substitution of the charges involved two distinct steps: first, the withdrawal of the existing charges; and second, the amendment to add the new charges. The appellant said that the first step was valid but the second was invalid with the effect that the original charges had been withdrawn, and because the 12 months had expired they could not be reinstated.

27 Justice T Forrest rejected the submission. He held that there was a single invalid exercise of the amendment power, and when that was set aside, the status quo ante was restored and the original charges remained undetermined and were remitted. It was in that context that T Forrest J said that s 8(1) 'does not provide for two discrete powers to withdraw and then add a charge on that charge sheet'.[17] It is clear that T Forrest J accepted that there was a power to add a new charge, including by adding a charge against a different offence provision. Indeed, his Honour recognised that negotiated outcomes between the prosecution and an accused are commonplace and often lead to different charges being prosecuted. In that context, he added: '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'.[18]

28 The applicant's construction is without merit. The ground is not arguable. Contrary to her submissions, there exists no conflict between the decision of the judge in this case and the decision in Bchinnati. Leave to appeal must be refused. At the hearing, the parties substantially accepted that costs should follow the event, and an order to that effect should also be made.[19] The application will be refused with costs.

[1] Section 49(1)(e) relevantly provides that a person is guilty of an offence if he or she refuses to comply with a requirement made under s 55(1). The original charge related to a requirement to remain at a police station, whereas the amended charge related to a requirement to furnish a sample of breath. See DPP v Kypri (2011) 33 VR 157; [2011] VSCA 257 ('Kypri').

[2] Fazal v Beauchamp [2020] VSC 546 ('Reasons').

[3] Section 5(a).

[4] Section 6(1).

[5] Section 6(3).

[6] Section 7(1).

[7] Section 256(1).

[8] Section 256(2)(c).

[9] [2014] VSC 623 ('Bchinnati').

[10] Ibid [30] (emphasis in original).

[12] Section 8(1).

[13] Section 8(3).

[14] (1992) 174 CLR 178; [1992] HCA 28. See also Lees v Connective Services Pty Ltd [2019] VSCA 143; (2019) 346 FLR 323, 341-3 [85]-[97]; [2019] VSCA 143 (Whelan and McLeish JJA).

[16] The applicant sought to draw support from the predecessor to s 8, namely s 50 of the Magistrates' Court Act 1989, and related case law including Kypri (2011) 33 VR 157; [2011] VSCA 257. However, that provision was in very different and more limited terms, empowering the court to correct a 'defect or error' in a charge. If anything, the adoption of wider language in s 8 tells against the applicant's argument.

[17] [2014] VSC 623, [30].

[19] The applicant submitted that there was a public interest dimension to the case which should bear on costs, but since we have found the ground to be unarguable that submission must fail.