Gigante v Hicks [2001] VSCA 4

Court of Appeal (Vic)|2001-02-23|Before: TADGELL, CALLAWAY and BATT, JJ.A.

CRIMINAL LAW - Question of law reserved - Inutile to answer.

CRIMINAL LAW - Practice - Summary offence - Charge - Place misstated - Variance if inessential - Failing breath test - Place inessential - Amendment allowable beyond 12 months after offending - Quaere whether needed - Observations in Kerr v. Hannon [1992] VicRp 3; [1992] 1 V.R. 43 and disapproved , ss.26(4), (1); ,

Having had the advantage of reading in draft the reasons prepared by Batt, J.A., I agree with all that his Honour has said.

The court has before it a question of law reserved by a judge of the County Court pursuant to ss.446(1) of the Crimes Act 1958 and the case stated by him pursuant to s.447(1). The material facts set forth in the case are given in the following paragraphs.

At approximately 7.15 p.m. on Friday 31 May 1996 Sante Gigante, whom I shall call "the appellant", was intercepted by Sergeant Kevin David Hickson of the Victoria Police, whom I shall call "the respondent", in a service lane of the Western Highway near its intersection with Station Road at Deer Park. The respondent administered a preliminary breath test to the appellant and, being of opinion as a result that the appellant's blood contained alcohol, required the appellant to accompany him to a breath testing vehicle situated in Geelong Road, Yarraville. There the respondent required the appellant to undergo a breath test pursuant to s.55 of the Road Safety Act 1986. At 7.55 p.m. the appellant furnished a sample of breath, which was analysed by a breath testing instrument and gave a reading of .110%.

The appellant was charged with an offence under s.49(1)(f) of the Road Safety Act and that charge was heard by the Magistrates' Court at Williamstown on 26 August 1997. As typed, the charge read:

"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."

At some stage, which the judge could not determine[1], the word "Footscray" was printed by hand immediately after the words "Deer Park".

On 26 August 1997 the magistrate amended, or allowed the amendment of, the charge by the deletion of the words "Deer Park Footscray" and by the substitution therefor of the word "Yarraville". The magistrate found the offence proved and, with conviction, fined the appellant $420 with $48.50 statutory costs. He further ordered that the appellant's licence be cancelled and that the appellant be disqualified from driving in Victoria for a period of 11 months. It was ordered that there be a stay to 23 September 1997[2]. On 26 August 1997 the appellant lodged an appeal to the County Court against the orders of the Magistrates' Court.

That appeal came on for hearing by the County Court judge on 29 June 2000. Notwithstanding submissions to the contrary by counsel for the appellant, he held that the County Court did not have jurisdiction to determine whether the magistrate was correct, as a matter of law, in amending, or allowing amendment of, the charge as above. He then proceeded to hear the appeal. He found the offence proved, set aside the orders of the Magistrates' Court as required by s.86(1)(a) of the Magistrates' Court Act 1989, and then made orders virtually identical to those made by the magistrate save that the 11 months' period of disqualification was to run from 29 June 2000. On 30 June he ordered that the execution of those orders be postponed until the question of law stated by him should be considered and determined by this Court.

The question which his Honour reserved is as follows:

"Did the County Court on the hearing of the above appeal have jurisdiction to determine whether the learned magistrate had acted in accordance with law in amending, or allowing the amendment of, the charge on 26 August 1997?"

The answer to the question reserved depends on the meaning and effect of the relevant provisions relating to appeals to the County Court, and in particular ss.83(1)[3], 85 and 86(1)(b) and (c) of the Magistrates' Court Act and s.29(1) of the Road Safety Act.[4]

Mr. Gillespie-Jones for the appellant informed the court that, if he succeeded in obtaining an affirmative answer to the question, he proposed to submit to the County Court judge on remitter of the matter to him that the magistrate[5] had been bound to refuse the amendment, and so had not acted in accordance with law in making or allowing it, because the amendment had the effect of impermissibly substituting a different offence and did so outside the time limit prescribed by s.26(4) of the Magistrates' Court Act. (Counsel made it clear that the challenge to the magistrate's decision on amendment was not that the magistrate had mis-exercised his discretion in some way.) Accordingly, he proposed to submit to his Honour that he should dismiss the information since the evidence did not support the unamended charge. Indeed the outline of argument for the appellant sought a direction from this Court to the judge under s.447(1) of the Crimes Act that he should find in favour of the appellant.

Section 26(4) of the Magistrates' Court Act provides:

"(4) A proceeding for a summary offence must be commenced not later than 12 months after the date on which the offence is alleged to have been committed, except where otherwise provided by or under any other Act."

It was not suggested that another time was provided by or under any other Act. By sub-s.(1) "[a] criminal proceeding must be commenced by filing a charge" with, relevantly, a registrar.

By s.447(1) of the Crimes Act this Court is empowered to hear and finally determine a question reserved; but it is not bound to determine the question or questions in every case. A well recognised ground for declining to do so is that of inutility. In my opinion, to answer the present question will be of no practical value and the court should accordingly decline to answer it. I say this because, if his Honour had jurisdiction, he must, for the reasons set out below, have upheld the magistrate's decision on amendment[6], there being no suggestion of countervailing discretionary considerations. Thus, even if the question is answered affirmatively, the appellant will not achieve any practical success: the charge will stand amended and his conviction on it will remain.

One other provision must be set out. Section 50(1) of the Magistrates' Court Act provides:

"(1) 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."

The offence under paragraph (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 paragraph (f) of s.49(1), occurs at the place where the sample is furnished[7]. In the present case that place was undoubtedly Yarraville. But the place of offending ordinarily at least[8] is not, and in the present case in particular was not, an essential element of the offence under paragraph (f) and so ordinarily is not, and here was not, a material allegation.[9] 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[10] shows, even the identity of the street where the dangerous driving allegedly occurred is not material.[11] Offences such as I have instanced are quite different from the offence here in question.

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.

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. Since the offence alleged in the amended charge was accordingly that alleged in the original charge (whose filing commenced the proceeding) and since the latter had been filed no later than 12 months after the date on which "the offence" was alleged to have been committed (31 May 1996)[12], there was no infraction of s.26(4) of the Magistrates' Court Act[13]. Nor, contrary to the outline of argument for the appellant, had the power of amendment been used to overcome a time limit.

Rather, what occurred before the magistrate was that the prosecutor, to avoid an anticipated variance between the charge and the evidence presented in the proceeding (to use the language of s.50(1) of the Magistrates' Court Act), applied for and was granted an appropriate amendment. That course accords entirely with the opinion expressed by Ormiston, J. in Director of Public Prosecutions v. Webb[14]. Authorities on cognate legislation show that, because the place of offending in the present case was a non-essential particular, there would have been a mere variance when the evidence was led before the magistrate. Thus, in Felix v. Smerdon[15] Latham, C.J. is reported as stating that a variance exists where an offence which is charged is established with some variation or difference in detail, but that where the offence is really a different offence, then the term "variance" is not applicable. Similarly, in Hackwill v. Kay[16] the Full Court, considering the meaning of "variance" in a forerunner of s.50(1), quoted the statement of Crompton, J. in Martin v. Pridgeon[17], a case in which time was not of the essence of the offence charged, that the variance meant was -

"a difference between the mode of stating and the mode of proving the same thing in substance. ... Variance points to some distinction between the allegation of time or place and the proof of it."

"'Variance' in this section, therefore, does not cover every divergence between the evidence and the information. The principle appears to be that if the offence proved is essentially different from the offence charged, the latter part of [the forerunner section] has no operation. The learned author of Paul on Justices of the Peace (1936), says that variances in this section are limited to variances in non-essential particulars: see pp.509-510."

It may well be that under the modern s.50(1), as opposed to the section considered in Hackwill v. Kay, amendment was not necessary and that the appellant could have been lawfully convicted on the unamended charge; for, as regards mere variance, the subsection simply prohibits the allowance of objection "for" it (that is, on the ground of it), and the power conferred to amend is confined to the correction of "any defect or error in [the charge] in substance or in form" [18]. But the appellant cannot complain that he had the benefit of correct particularisation of the offence. Justice, which is a two-way street, required either amendment or (on proof in due course of the necessary facts) conviction on the unamended charge. As regards the application for amendment, the only right exercise of discretion was to amend, to borrow the language of Brooking, J.A. in McMahon[19].

Finally, several cases, of varying kinds, were relied on for the appellant in support of the submission intended to be made to the judge and it is necessary to consider them. In my view, for reasons which follow, none of them does support the proposed submission. All are distinguishable as being concerned with different points from the present one. Dicta in two of them that favour the appellant are, in my view, incorrect. I shall discuss them individually. Hackwill v. Kay[20] concerned time, not place, where the relevant section, a forerunner of s.26(4) but in more emphatic terms, made the date of offending of the essence of the offence. Kerr v. Hannon[21] was decided principally at least on the question of the date of offending, on which Hackwill v. Kay was followed. The date had been omitted from the three informations laid for driving offences, so that they were defective. Two of the informations also did not allege the place of offending.[22] In remarks which can be read as being obiter Nathan, J. said[23] that justice demanded that a defendant be apprised of the place of commission of the offence, in his view, and that amendment to insert the place amounted to rectifying a fundamental defect, and later[24] his Honour said that the prosecution must provide sufficient particulars to identify the place or location. So far as those remarks relate to the supplying of particulars of the place of offending they are unexceptionable; but, in one place at least, they seem to suggest (and were understood in the case next to be discussed as suggesting) that the place of offending was an essential element of the offences under s.49(1)(b) and (f) of the Road Safety Act (not the Road Traffic Act 1958, as stated in the judgment). That, as appears from what I have earlier said, is, in my view, incorrect. Goodman v. Stafford[25] was concerned with the place of offending. The place had not been stated in an information under s.49(1)(e) of the Road Safety Act for failing to furnish a sample of breath for analysis. Hampel, J. held that the magistrate erred in allowing an amendment to insert the place. His Honour's decision can be upheld as turning on discretionary considerations. But in addition his Honour agreed "with the view expressed in Kerr v. Hannon that an information must state ... where [the offence] is alleged to have been committed"[26] and concluded[27] that the omission of the place did not constitute a defect or error within the ambit of s.50. As is apparent from what I have already said, in my view neither of those propositions is correct. (I assume for present purposes in the case of the second proposition that the omission from the information was wrong.) I should say that I do not consider that in the passage from Johnson v. Miller[28] cited by Hampel, J. for the first proposition Latham, C.J. meant that the place must always be stated in an information in order for it to be valid.

Mr. Gillespie-Jones returned time and again to a passage in the judgment of Dixon, J. in Johnson v. Miller[29], where, citing the decision of the Divisional Court in Smith v. Moody[30], his Honour said that describing the offence in the words of the relevant section related only to the nature of the offence and did "not dispense with the necessity of specifying the time, place and manner of the defendant's acts or omissions". In Johnson v. Miller the complaint did in fact state the day, place and circumstances of the offence, but the facts or alleged facts disclosed a latent ambiguity in the complaint. Dixon, J. said that latent ambiguity might have been removed by making an amendment or by giving particulars. I do not consider that his Honour's statement as to the necessity of specifying the time, place and manner of the defendant's acts or omissions was intended to mean that those matters, and in particular the place, must always be stated in the information or charge itself. That they might be notified to the defendant in particulars is shown by his Honour's statement as to how latent ambiguity might have been removed. In Smith v. Moody[31] Channell, J. spoke of "the usual necessity for specifying time and place and matter", though he later said that there must be facts relating to "the particular matter such as the time when and the manner in which the offence was committed"[32]. In that case the necessary ingredients of the offence had been omitted from the conviction as drawn up and, since the conviction had to be as precise as the summons or indictment, it was bad. Subsequent cases show that the better view of Smith v. Moody is that, like Johnson v. Miller, it is really concerned with particulars, as indeed McTiernan, J. had treated it in Johnson v. Miller itself[33]: Davies v. Ryan[34]; Ex parte Lovell; Re Buckley[35] per Jordan, C.J.; De Romanis v. Sibraa[36], a passage cited with approval by Mason, C.J. and Deane and Dawson, JJ. in John L Pty. Ltd. v. Attorney-General (N.S.W.)[37]; the judgment of Brennan, J. (dissenting) in the last-mentioned case[38]; R. v. Magistrates' Court at Heidelberg; Ex parte Karasiewicz[39]; Day & Riggs v. Rugala[40] and Lillyman v. Pinkerton[41].

John L Pty. Ltd. v. Attorney-General (N.S.W.) was itself one of the cases relied on for the appellant. But there the information was defective because an essential factual ingredient of the offence in question was omitted, and it was held in the particular statutory context in which the proceeding occurred that none of the statutory provisions which might have operated to cure the defect was applicable. Finally, Felix v. Smerdon was cited and an example given in Parmeter v. Proctor was called in aid. In the first case and in the example the offence proved was a different offence from that charged. In Felix v. Smerdon an offence at Clermont in New South Wales on 5 December 1942 was alleged. The evidence showed an offence at Comet, 90 miles away in Queensland, not earlier than 16 December 1942. In addition, under the relevant National Security Regulation the time of absence from work was an essential element of the offence. Latham, C.J. seems to have regarded that as decisive against the applicability of the New South Wales section roughly equivalent to s.50(1) of the Magistrates' Court Act. Starke, J. held that because the offences charged and proved were different there was no variance and no defect in substance within the meaning of the New South Wales section. The reasons of the other three justices are not given in the note of the case. In Parmeter v. Proctor Herron, J. said[42]:

"It must be observed of course that a variation in date and place may so grossly misrepresent the position as to charge in effect a different offence altogether. One can easily understand that if A is charged with stealing in Dubbo on 1st January ... this would by no means warrant a conviction for his stealing in Grafton on 30 June. Such a case was that of Felix v. Smerdon ..."

It is sufficient to say that the present case is simply not of the same kind as that example or as Felix v. Smerdon.

For the foregoing reasons I have concluded that the proposed submission has no prospect of success: it is as devoid of substance as it is of merit. Since nothing will be served by answering the question reserved the Court should decline to do so[43].

[1] The printing on the charge sheet looks the same as that of the word "Yarraville", substituted as referred to below, suggesting that a slip was initially made in making the amendment. But, somewhat unusually, the charge sheet was not annexed to or incorporated in the stated case.

[2] It appears from the amended summary provided for this Court that, upon the filing of notice of appeal to the County Court, the appellant was granted a further stay in respect of the order for cancellation and disqualification pursuant to s.29(2) of the Road Safety Act.

[3] Read with the definition of "sentencing order" in s.3(1).

[4] As to which, see s.90 of the Magistrates' Court Act.

[5] On another view of the appeal provisions, which is suggested by the outline of argument for the appellant though it does not underlie the question reserved, it would be the County Court judge, starting with the charge before its amendment and re-hearing the "whole matter", who would be bound, on the appellant's argument, to refuse the amendment.

[6] Or, on the other view noted earlier, himself have allowed or made the amendment.

[7] Director of Public Prosecutions v. Webb [1993] VicRp 82; [1993] 2 V.R. 403 at 417.

[8] It might, extraordinarily, be essential where the defendant had furnished samples of breath at more than one place on the same day, at least if several charges were laid.

[9] This is apparent from the text of the paragraph and is confirmed by reference to the list of ingredients of the offence set out in Smith v. Van Maanen (1991) 14 MVR 365 at 371; and Director of Public Prosecutions v. Webb at 407; cf. Director of Public Prosecutions v. Foster [1999] VSCA 73; [1999] 2 V.R. 643, a decision of the Court of Appeal.

[11] In Wright v. O'Sullivan [1948] S.A.S.R. 307 the majority of the South Australian Full Court held that the averment of place of the offence of carrying on business as a bookmaker otherwise than in accordance with relevant statutory provisions was not an essential element in the description of the offence.

[12] Although the case does not explicitly state that the filing occurred within the period of 12 months, that seems to be implied, and a court dealing with a stated case may rely on implications as opposed to inferences: The Queen v. Rigby [1956] HCA 38; (1956) 100 C.L.R. 146 at 151-152 and cases there cited. That the original charge had been filed within time was, moreover, an implied postulate of Mr. Gillespie-Jones's argument. Reference to the charge sheet already mentioned shows it to be dated 29 November 1996. In the light of the foregoing it is unnecessary to send the case back for amendment under s.448 of the Crimes Act.

[13] Compare McMahon v. Director of Public Prosecutions (unreported, Court of Appeal, 20 June 1995), which exemplifies the proposition that a charge may be amended outside the 12 months' period where the offence remains the same.

[14] At 417, citing Warner v. Sunnybrook Ice Cream Pty. Ltd. [1968] VicRp 11; [1968] V.R. 102.

[18] Parmeter v. Proctor at 49; cf. Hedberg v. Woodhall [1913] HCA 2; (1913) 15 C.L.R. 531 at 534-535 and McMahon v. Director of Public Prosecutions at p.4.

[22] The headnote is erroneous on this point.

[32] The word "matter" where first appearing might be thought a misreporting by the authorized reports of his Lordship's extemporary reasons, but I am grateful to Tadgell, J.A. for pointing out to me that all but one of the seven other contemporary reports of the decision also have "matter". In the report in (1902) 72 L.J.K.B. 43 at 47 the word "circumstances" appears instead.

[43] The order made by the County Court judge under s.446(1) of the Crimes Act on 30 June 2000 postponing execution of his orders, being in the nature of a stay, can no doubt be lifted by him (or, if need be, another County Court judge). I am grateful to Callaway, J.A. for drawing this matter to my attention.

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