Goodey v Clarke [2002] VSC 246

8. Section 55(2A) is a section, which was inserted by amendment, to permit the breath analysis operator to seek further samples of the breath of a person who is being tested when the initial sample does not produce the desired result; that is to say, does not produce a sample capable of being measured or, for some other reason, a measurement is not obtained. The reasons which can give rise to the use of s.55(2A) are set out in that sub-section, and they are 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 100 millilitres of blood because the amount of sample furnished was insufficient or because of a power failure or malfunctioning of the instrument or for any other reason whatsoever. In essence, the section is designed to prevent someone being able to produce an inconclusive or inadequate sample and then claim to have complied with the Act.

11. The problem the prosecution faced in this case was that it charged Mr Goodey with a failure to comply with s.55(1). It is not contested that in fact he did provide the initial sample. The prosecution's complaint is that he did not comply with the further requirements which were, in this particular case, required of him by s.55(2A). Counsel for Mr Goodey made a "no case" submission at the end of the prosecution case. That submission was rejected, despite the fact that at that stage he had complied, and there was no contest that he had complied, with s.55(1).

14. The basis of the prosecution's assertion that that compliance did not mean that he was not guilty of the offence is, as Mr Gyorffy submits, that s.55(2A) does not create a separate offence at all but simply provides a method of complying with or, alternatively, not complying with s.55(1). He points to the offence section of the Act in support of that submission. The offence section is s.49(1). In this case it is s.49(1)(e), which provides that a person is guilty of an offence if he or she refuses to comply with a requirement made under s.55(1), (2), (2A) or (9A). On its face, therefore, it would seem that the section is referring to four separate offences, that is to say, refusing to comply with one or other of those four requirements in those four statutory provisions.

17. Mr Gyorffy, however, says that, if that was so, s.49(1)(f), which provides that the result of an analysis performed under s.55 provides evidence for use in a prosecution, would fall to the ground if the sample was provided under s.55(2A) and not s.55(1).

20. Notwithstanding Mr Gyorffy's submission, I have concluded that s.55(1) and s.55(2A) do in fact create separate offences: in the first, a failure to provide a breath sample simpliciter and, in the second, a failure to provide further samples in the circumstances provided by s.55(2A). Having regard to the preliminary words of s.55(2A), it would not be open, in my view, to argue that s.49(1)(f) was rendered inoperative where a sample is provided pursuant to s.55(2A). Section 55(2A) commences with reference to the person who required a sample of breath under s.55(1) or (2) being entitled to require the person who furnished the breath sample to provide further samples. That is sufficient, in my opinion, to interpret s.49(1)(f) as applying to a sample of breath and its analysis whether the sample was provided under s.55(2A) or s.55(1). That legal analysis does not mean that the two sections create the same offence or that there is only one offence. Section 49(1)(e) makes it clear that there is more than one offence, and when one looks at the elements of those offences which would have to be proved under s.55(1) and then under s.55(2A) that conclusion is reinforced.

23. Following the rejection of the "no case" submission, the case proceeded with the defendant giving evidence, at the end of which, after some discussion and at the invitation of the magistrate, the prosecution applied to amend the charge to substitute s.55(2A) for s.55(1) in its formulation. This seems to have been a recognition that there was a different offence created, otherwise the amendment would have been unnecessary. However, whether that was such a recognition or not, the question then is whether such an application to amend should have been entertained by the magistrate and, if entertained, should have been granted. In the event, the magistrate granted the application and proceeded to convict the now appellant.

26. The question of amendment is dealt with in the Magistrates' Court Act, s.50, which provides that:

"On the hearing of a proceeding the 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."

30. Mr Gyorffy pointed to what he calls the winds of change blowing through this part of the law as exemplified by a statement in a recent decision of the Court of Appeal, Director of Public Prosecutions v. Foster[1], where the President referred to the purpose of this legislation as being formulated "to deal with a major social problem". His Honour was, of course, referring to the problem of drunk driving. That is no doubt true. That major social problem is one which the legislature has addressed and in respect of which the court should be careful to ensure that its decisions reflect the intention of the legislature in proscribing such conduct and ensuring that those who commit it are properly dealt with. But that is not to say that the ordinary rules of criminal pleading or those safeguards which exist for the protection of all with respect to criminal matters should be thrown out. In Ex Parte Lovell; Re Buckley and Anor.[2], Sir Frederick Jordan dealt with the question of the way in which a person should be charged with a summary offence and said[3]:

"Hence in order to support a conviction for an offence it is necessary either that the information and summons upon which it is based should accurately state the acts necessary to constitute all the ingredients of that offence, or else, if they do not, that the accused person should have been accurately charged orally before the magistrate and should have raised no objection to the absence of information or summons."

In referring to an oral charge His Honour was speaking of a particular provision in the New South Wales Justices Act. He went on to further say that:

"If the magistrate convicts on an information or charge which discloses no offence or for an offence with which the accused has not been duly charged, then the conviction is bad. The power of amendment in cases of statutory prohibition conferred by s.113 does not extend to a conviction which goes beyond the charges nor to a conviction upon a charge which discloses no offence, even if the evidence supplies the missing ingredient, although if the offence has been accurately charged an omission in the form of conviction may be supplied. These propositions appear to be established by the cases of Ex parte Price, Ex parte Croudace, Ex parte Palmer, Ex parte Dunsmore, R. v. Duff, Ex parte Bellamy, Ex parte Stanton, Shiel v. Crothers."[4]

Again, more recently in Walsh v. Tattersall[5], speaking about the question of precision in criminal pleading, Kirby, J. laid down a number of reasons as to why a strict approach should be taken to resolving questions in relation to criminal pleading. Two of those are apposite. The first is that compliance with the rule of strictness is a correct practice to require of prosecutors and the second is that the rule of strictness is also desirable for the fair trial of the accused. His Honour referred to Johnson v. Miller[6] and S. v. R[7].

37. Mr Hardy, who appeared for the appellant in this court, referred to a number of cases including John L. Pty Ltd v. Attorney-General (NSW)[8]; and Alwer v. McLean, a decision of Smith, J. of this court[9], in which His Honour referred to the High Court case to which I have just referred and quoted a passage from the majority judgment in these terms:

"The old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justice before whom it was laid 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 has been 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'."[10]

Mr Hardy also referred to Woolworths (Victoria) Pty Ltd v. Marsh[11], to a passage from Pauls Justices of the Peace and to Flanagan v. Remick[12], Gigante v. Hickson[13] and Director of Public Prosecutions v. Holden[14], in which Hedigan, J. dealt with the question of the extent to which a charge under s.55(2A) was required to specify the basis upon which the offence was said to have occurred.

42. In this case, after amendment allowed by the magistrate, the charge simply referred to the section without reference to the way in which it was said the section was breached. Further, the charge was amended at a time when a new charge under s.55(2A) could not have been laid. It would have been out of time. The amendment should not have been allowed. To have allowed it was an error of law.

45. This appeal comes to this court under s.92 of the Magistrates' Court Act 1989 on a question of law, the questions of law having been isolated by a Master as having been three in number, namely -

(a) whether the magistrate erred in holding that an offence under s.55(1) was a cognate offence with that of refusing to comply with a requirement under s.55(2A);

(b) whether the learned magistrate erred in allowing the charge laid under s.49(1)(e) to be amended after more than 12 months had passed since the date of the offence and

(c) whether the learned magistrate erred in refusing to allow counsel for the defendant to cross-examine the informant on the question of whether or not the breath analysing machine used on the occasion was capable of measuring the concentration of alcohol present in the defendant's breath.

51. Having reached the conclusion that the appellant succeeds on grounds (a) and (b), it is unnecessary to consider further ground (c), and I do not do so.

54. The appeal will be upheld. The order of the magistrate convicting the appellant will be quashed and in lieu thereof the information dated 17 January 2001 to which I have referred will be dismissed.

57. I will order that the Chief Commissioner of Police pay the costs of the appellant in the Magistrates' Court in so far as they relate to the charge which has now been dismissed and that the Chief Commissioner of Police pay the appellant's costs in this court.

I certify that the preceding 6 pages are a true copy of the reasons for judgment

of Bongiorno, J. of the Supreme Court of Victoria delivered on 12 June 2002.

[1] [1999] VSCA 73.

[2] (1938) 38 S.R.(N.S.W.) 153.

[5] 139 A.L.R. 27.

[6] [1937] HCA 77; (1937) 59 C.L.R. 467.

[8] [1987] HCA 42; (1987) 163 C.L.R. 508.

[9] [2000] VSC 396.

[10] John L. Pty Ltd v. Attorney-General (NSW) [1987] HCA 42; (1987) 163 C.L.R. 508 at 519.

[11] Supreme Court of Victoria, Ormiston, J., 12.6.86, unreported.

[12] [2001] VSC 507.

[13] [2001] VSCA 4.

[14] [1999] VSC 14.