Plaintiff v Defendants

1 Section 49(1)(eb) of the Road Safety Act 1986 (Vic) ('Act') provides that it is an offence for a person to refuse to provide a sample of oral fluid in accordance with ss 55D or 55E of the Act when required to do so, or refuses to comply with any other requirement made under those sections. Sections 55D and 55E govern the testing of drivers of motor vehicles for illicit drugs.

2 Relevantly for the purposes of the current proceeding, s 55E(2) of the Act provides as follows:

If a person undergoes a preliminary oral fluid test when required to do so under section 55D by a police officer or an enforcement officer and -

(a) the test, in the opinion of the police officer or enforcement officer in whose presence it is made, indicates that the person's oral fluid contains a prescribed illicit drug; or

(b) the person, in the opinion of the police officer or enforcement officer, refuses or fails to carry out the test in the manner specified in section 55D(6) -

any police officer or, if the requirement for the preliminary oral fluid test was made by an enforcement officer, any police officer or any enforcement officer may require the person to provide a sample of oral fluid for testing by a prescribed device and, if necessary, analysis by a properly qualified analyst within the meaning of section 57B and for that purpose may further require the person to accompany any police officer or, if the requirement for the preliminary oral fluid test was made by an enforcement officer, any police officer or any enforcement officer to a place or vehicle where the sample is to be provided and to remain there until -

(c) the person has provided the sample and any further sample required to be provided under subsection (5), the sample has been tested by a prescribed device and the person has been given (if necessary) a part of the sample under subsection (11) and complied with any requirement made of him or her under section 59; or

(d) 3 hours after the driving, being an occupant of or being in charge of the motor vehicle -

whichever is the sooner.

Example

A person may be required to go to a police station, a public building, a booze bus or a police car to provide a sample of oral fluid under this section.

3 Relevantly, s 55D(1) of the Act provides as follows:

(a) any person he or she finds driving a motor vehicle or in charge of a motor vehicle; or

(b) the driver of a motor vehicle that has been required to stop at a preliminary testing station under section 54(3); or

(c) any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident; or

(d) any person who he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a motor vehicle when it was involved in an accident, if it has not been established to the satisfaction of the police officer which of the occupants was driving or in charge of the motor vehicle when it was involved in the accident -

to undergo a preliminary oral fluid test by a prescribed device and, for that purpose, may further require the person, if inside a motor vehicle, to leave the motor vehicle for the purpose of undergoing the test.

4 On 5 June 2020, the plaintiff was summoned to attend the Magistrates' Court at Korumburra on 17 December 2020 to respond to a charge under s 49(1)(eb) of the Act. The charge-sheet and summons ('original charge-sheet') referred to s 49(1)(eb) of the Act, and, adjacent to the words 'What is the charge?' stated as follows:

The accused at Meeniyan on 24/04/20 within 3 hours of being the driver of a motor vehicle was required to undergo a preliminary oral fluid test pursuant to section 55D of the Road Safety Act 1986, and was then required to accompany a police officer to a testing vehicle for the purpose of providing a sample of oral fluid for testing by a prescribed device pursuant to section 55E(2)(b), did refuse to accompany a police officer to the vehicle in accordance with section 55E.

5 Adjacent to the words 'Offence Literal' were the words 'Refuse to Accompany for Oral Fluid Sample.'

6 The original charge-sheet contained an error. It is common ground between the plaintiff and the first defendant ('informant') that the provision which enlivened the power of the informant to require the plaintiff to accompany him to the testing vehicle was s 55E(2)(a), not s 55E(2)(b) of the Act.

7 The charge was brought on for hearing at the Magistrates' Court at Wonthaggi on 8 December 2023, at which time counsel for the plaintiff submitted that the charge in the original charge-sheet was ineffective, unable to support a conviction, and was not capable of being amended pursuant to s 8 of the Criminal Procedure Act 2009 (Vic) ('CPA'). The proceeding was adjourned to 1 March 2024, when the informant made an application to amend the original charge-sheet to identify the correct paragraph of s 55E(2) of the Act. It was common ground before the learned magistrate (and before this Court) that if the application to amend the original charge-sheet was refused, the charge should be dismissed.

8 After hearing submissions from the parties, which were in substantially similar terms as the submissions before this Court, the learned magistrate reserved her decision, and on 15 March 2024, granted the informant's application to amend the original charge-sheet to substitute 'section 55E(2)(a)' in place of 'section 55E(2)(b)'. Given that counsel for the plaintiff foreshadowed the issue of this proceeding immediately after her Honour delivered her oral ruling, the further hearing of the charge, as amended, was adjourned to a later date pending the outcome of this application for judicial review.

9 In her ruling, the learned magistrate referred to cl 1, sch 1 and s 8 of the CPA, which she said made it clear that the Court must consider whether the charge-sheet contains sufficient information to inform a reasonable defendant of the essential elements of the offence. Whether an amendment to a charge has the effect of creating a new offence 'is a matter of substance to be assessed by comparing the amendment and the charge'. The learned magistrate observed that it is permissible to consider the entirety of the charge-sheet in conducting this assessment.

10 As the limitation period had expired, the learned magistrate observed that ss 8(3) and 8(4) of the CPA apply, and constrain the Court's power to amend a charge. With respect to s 8(4)(a) of the CPA, her Honour said that whether the nature of an offence is sufficiently disclosed is a question of fact and degree and depends on the offence in question and the way the charge-sheet was framed. The learned magistrate referred to the decision of the Court of Appeal in Fox v Director of Public Prosecutions ('Fox')[1] as clear authority that s 8(4) of the CPA requires that a charge-sheet, prior to any amendments, sufficiently discloses the nature of the offence.

11 The learned magistrate stated that the relevant question before the Court is as follows:

[W]hether the amendment [to the charge] can cure the irregularity or defect without injustice to the accused and that it does not create a new offence. The charge-sheet must sufficiently disclose the nature of the offence.

12 Her Honour said that the resolution of this issue was dependent upon whether the accused could 'point to anything which showed he could not reasonably have understood the case against him was one of refusing a preliminary oral fluid test.' The learned magistrate referred to Fox,[2] as authority that the power to amend a charge is broad, but constrained by the relevant sections of the CPA, and is designed to ensure that there is no injustice to an accused.

I do not believe the charge is manifestly defective on its face to prevent it from being amended.

...

It is the court['s] view that the charge as read sufficiently discloses the nature of the offence and, in my view, does not cause an injustice to this accused. It is the court's view that a reasonable person would understand the nature of the charge and the amendment is one of form and not substance. The charge sheet includes the correct sections of the Road Safety Act being s49 (1)(eb). The defect is in relation to s55E(2)(b). I do not believe this amendment creates a new offence and I am not satisfied this defect is so significant as to cause injustice.

Section 8(3), it is this court's view that the amendment sought by prosecution should be granted. The accused has been correctly charged, the offence is refuse a breath test. In my view, the amendment does not create a new offence at all. Further, I am of the view that the charge before the amendment discloses the nature of the offence to a sufficient degree that the amendment would not create or amount to a new offence.

Following from that, I do not believe that there would be an injustice to this accused. It is apparent in the wording of the charge under s49(1)(eb) that the charge is refuse breath test.

14 In his originating motion filed on 14 May 2024, the plaintiff seeks an order in the nature of certiorari quashing the learned magistrate's decision to allow the amendment to the original charge-sheet, and an order in the nature of mandamus directing the Magistrates' Court to strike out and/or dismiss the charge in the original charge-sheet.[3]

15 In the originating motion, the plaintiff relied upon the following grounds of review:

(a) That the second named defendant Her Honour Magistrate O'Donnell:

(i) refused to exercise a jurisdiction that she had and/or

(ii) exercised a jurisdiction that she did not have and/or

(iii) erred at law and/or

(iv) there was error of law on the face of the record in allowing an amendment to the charge under s. 49(1)(eb) of the Road Safety Act 1986 in holding (if she did so hold) that:

(i) The charge as currently framed was a valid charge containing all the essential elements and particulars required at common law and pursuant to Schedule 1 of the Criminal Procedure Act 2009 and in so holding the learned Magistrate fell into error as a matter of law; and/or

(ii) The charge was able to be amended to clarify the true nature of the charge and in so holding the learned Magistrate fell into error as a matter of law; and/or

(iii) Under the circumstances, the charge was able to be amended outside the limitation period and amendment did not breach s. 8(3) of the Criminal Procedure Act 2009 and in so holding the learned Magistrate fell into error as a matter of law; and/or

(iv) Under the circumstances, the charge was able to be amended outside the limitation period and amendment did not breach s. 8(4) of the Criminal Procedure Act 2009 and in so holding the learned Magistrate fell into error as a matter of law and/or

(v) Under the circumstances, the charge was able to be amended outside the limitation period and amendment did not breach ss. 8(3) and/or 8(4)(b) of the Criminal Procedure Act 2009 insofar that amendment did not constitute the framing of a new offence and in so holding the learned Magistrate fell into error as a matter of law.

(b) That under the circumstances the second named defendant Her Honour Magistrate O'Donnell erred in allowing amendment of the charge brought against the Plaintiff and in so ruling the learned Magistrate fell into error as a matter of law.

(c) That under the circumstances the second named defendant Her Honour Magistrate O'Donnell erred in refusing to strike-out a certain charge and summons or in the alternative dismiss a certain charge under s. 49(1)(eb) of the Road Safety Act 1986 brought against the Plaintiff.

16 While the plaintiff contended in the grounds of review that the learned magistrate had made a jurisdictional error, I have proceeded on the basis that the real question in this proceeding is whether the learned magistrate made an error of law on the face of the record in allowing the application to amend the charge-sheet.

17 The parties filed extensive and detailed written submissions prior to the hearing of the proceeding. However, I do not propose to repeat those submissions in any detail here. The parties agree that there was an error in the original charge-sheet, and agree upon the consequences which flow from a finding that the original charge-sheet could not have been, and therefore should not have been amended by the learned magistrate.

18 The parties also agree as to the legal principles governing amendments to charges under s 8 of the CPA. Where they disagree is upon their application to the facts and circumstances of this proceeding.

19 The issue in this proceeding boils down to whether the charge in the original charge-sheet is ineffective, because it charged an offence other than that which the informant seeks to prove at trial. In order to make good that proposition, the plaintiff needs to satisfy this Court that the statutory precondition to making the requirement to accompany in s 55E(2) of the Act ('precondition') is an essential element of the offence, and that amending the original charge-sheet in the way that the learned magistrate did fell foul of s 8 of the CPA, because the effect of the amendment would be to charge the plaintiff with a new offence outside the applicable limitation period.

20 In my view, the charge in the original charge-sheet was defective by reason of the error. It was ineffective, in that it could not support a conviction, but not by reason of failing to disclose an essential element of the offence, as the applicable precondition was not an essential element of the offence under s 49(1)(eb) of the Act. The essential elements of the offence under s 49(1)(eb) of the Act include, among other things, the 'requirement to accompany' and the 'refusal to accompany', but do not include the precondition. Further, that the charge was defective did not preclude the court exercising its power of amendment, as the amendment to the charge allowed by the learned magistrate did not have the effect of charging the plaintiff with a new offence, and the amendment did not otherwise fall foul of the requirements of ss 8(3) and (4) of the CPA. Accordingly, there has been no error of law on the face of the record, and the application for judicial review must be dismissed.

21 What information was required to be included in a charge at common law was summarised by Dixon J in Johnson v Miller,[4] as follows:

In my opinion [the informant] clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence.[5]

22 Earlier in his reasons, his Honour also referred to 'the necessity of specifying the time, place and manner of the defendant's acts or omissions'.[6]

23 Of course, what is required to be included in a charge-sheet, and the question of whether a charge-sheet may be amended outside the relevant period are now governed by statute, albeit informed by long standing common law principles.

24 Section 6(3)(c) of the CPA provides that a charge-sheet must comply with sch 1 of the CPA, which provides that:

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.

25 In Wells v Stillman,[7] Quigley J stated as follows:

Whilst the requirement for particulars to be included in a charge is now on a statutory footing, as explained by Ferguson and McLeish JJA in Baiada, the requirements of the CPA:

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.

After discussing the different ways in which the common law requirement for particulars had been expressed in earlier authorities, their Honours concluded:

The question that arises, bearing these authorities in mind, is whether the present charge contained the particulars necessary to give reasonable information as to the nature of the charge. The "nature of the charge" involves the conduct making up the actual ingredients of the offending ...[8]

26 And further, in relation to the applicable common law principles:

The traditional function of a charge at common law was to found the jurisdiction to deal with the alleged offence. The modern articulation is commonly understood as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal in addition to providing the accused with the substance of the charge they are called upon to meet. Subject to any statutory provision that permitted a defect to be corrected, a charge 'should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it was committed'.

The common law requirement for adequate particulars to be included in a charge did not have a single formula. The rule been described variously as 'the necessity of specifying the time, place and manner of the defendant's acts or omissions'; 'the old rule of criminal practice which requires that fair information and reasonable particularity as to the nature of the offence must be given'; and a requirement to specify 'whatever is necessary to show that the person convicted has done something which brought him within the words of the statute'.[9]

27 Section 8 of the CPA confers upon the Magistrates' Court a power to amend a charge-sheet, as follows:

(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.

28 The principles governing applications under s 8 of the CPA were comprehensively and authoritatively set out in the decision of the Court of Appeal in Fox.[10] In their written and oral submissions, counsel for both parties also referred to a number of decisions that provide some helpful guidance as to what constitutes the essential elements of an offence, and what features and characteristics render a charge valid and effective (or not, as the case may be), and as to how s 8 of the CPA is to be construed and applied.

29 In Fox,[11] the Court of Appeal considered the adequacy of a charge for a summary offence laid under the CPA in three separate proceedings. In each case, the accused alleged that the charge-sheet, or the charge in the charge-sheet, was invalid because it did not provide the necessary particulars of the offence as required by cl 1(b) of sch 1 of the CPA.

30 Two of the three appellants had been charged with speeding offences under r 20(1) of the Road Safety Road Rules 2017 (Vic). The charge-sheet for the first appellant, Mr Bant, incorrectly specified the road name and locality of the offending. The charge-sheet for the second appellant, Mr Fox, also incorrectly described the place of the offence by stating it was nearby to a road that did not exist. The third appellant, Mr Nunn, was found driving with a prescribed illicit drug present in his system as confirmed by a blood sample, but the charge-sheet did not specify the name of the illicit drug. In each case, the Court of Appeal determined that the charge-sheets were capable of amendment under s 8 of the CPA, and dismissed the appeals.

31 The Court differentiated the terms 'charge-sheet' and 'charge' as follows:

The latter is the allegation of the particular offence that the accused is said to have committed; the former is the formal document that sets out the charge and commences the criminal proceeding. A charge-sheet may contain more than one charge.[12]

32 The Court observed that cl 1(b) of sch 1 of the CPA requires that a charge 'must contain the particulars... necessary to give reasonable information as to the nature of the charge'.[13] This is a statutory test which involves a question of fact and degree in each case, and the common law informs the content of the statutory test.

33 Following a thorough review of the legislative regime, the Court of Appeal concluded as follows:

A failure of a charge to aver an essential element of an offence does not necessarily equate with a failure of a charge-sheet to sufficiently disclose the nature of an offence.

...

[A] charge that does not contain the essential elements of the offence is not, under a statutory regime of the present kind, a nullity. Such a charge is capable of amendment to cure the defect, subject to the limitations found in ss 8(3) and 8(4)(a). Thus, the question of whether the amendments would amount to the commencement of a proceeding for a new offence is not answered simply by observing that the unamended charge was 'invalid', or that it failed to include the elements of the offence. Whether an amendment involves the commencement of a proceeding for a new offence is a matter of substance, to be assessed by comparing the unamended charge and the amended charge.[14]

34 The Court summarised its conclusions regarding the interpretation of the relevant provisions of the CPA, as follows:

(a) Filing a charge-sheet confers jurisdiction on the Magistrates' Court to hear and determine the charges on the charge-sheet.

(b) A charge-sheet must comply with sch 1 of the CPA: s 6(3)(c). However a charge-sheet that does not comply with sch 1 is not invalid simply by reason of that failure: s 9(1).

(c) Clause 1(b) of sch I supplies a statutory test for determining the adequacy of the particulars furnished as part of the charge: that it provides the particulars 'necessary' to provide 'reasonable information about the 'nature of the charge'. The common law informs the content of that statutory test. It is not necessary, in order to comply with cl 1(b), for the charge to set out all the matters that the prosecution may need to prove at trial.

(d) A charge-sheet may contain an error and yet comply with cl 1 of sch 1. In such a case, a magistrate would have jurisdiction to hear and determine the charge without amendment. However, if an error of this kind is identified, it would usually be preferable for the charge-sheet to be amended to correct the error.

(e) Where a charge-sheet or a charge fails to comply with cl 1 of sch 1, it may be able to be amended pursuant to s 8 of the CPA, subject to the limitations found in that section.

(f) A charge-sheet may be amended under s 8 of the CPA even if the charge fails to include an essential element of the offence or otherwise fails to disclose an offence known to law. More generally, the fact that a charge may have been invalid at common law does not mean that it cannot be amended under s 8 of the CPA. However, such a charge would be ineffective unless amended.

(g) If the imitation period for the offence has not expired, the power of amendment is broad, but constrained by the requirement to ensure that there is no injustice to the accused: s 8(1). In those circumstances a charge-sheet can be amended in such a manner as to add a new charge.

(h) If the limitation period for the offence has expired, there are greater constraints on the power to amend, namely:

(i) The unamended charge must sufficiently disclose the nature of the offence: s 8(4)(a). This is different from, and broader than, the requirements in cl 1 of sch 1 concerning the statement of the offence and the provision of reasonable information concerning the charge. The fact that a charge does not comply with cl 1 of sch 1 does not mean that the charge necessarily fails to sufficiently disclose the nature of the offence.

(ii) The amendment cannot amount to the commencement of a proceeding for a new offence: ss 8(3) and 8(4)(6). An amendment that cures a defect that would have caused a charge to be invalid at common law does not necessarily involve the commencement of a proceeding for a new offence. The fact that an amendment cures a failure to comply with cl 1 of sch 1 does not necessarily mean that it involves a proceeding of that kind. Whether an amendment amounts to the commencement of a proceeding for a new offence is a case-specific inquiry, and will require consideration of the particular offence initially alleged, compared with the offence alleged after the amendment.

(iii) The amendment cannot cause injustice to the accused: s 8(4)(c). Whether an amendment causes injustice to an accused will be a question of fact in each case.

(i) A magistrate has a duty to consider whether to amend charge-sheet even if no application is made to amend, and a power to amend the charge-sheet on his or her own motion.

(j) If a charge is ineffective and an amendment cannot he, or is not, made under s 8 then the charge should be dismissed.

We also wish to emphasise that, when confronted with an argument that a charge or a charge-sheet is invalid, or should be dismissed because it fails to comply with cl 1(b) of sch 1, it will often be the case that the first step that a magistrate should take is to consider whether the issue that has been taken with the charge or charge-sheet can be addressed by amendment. It is only if the issue cannot be addressed by amendment that it would be appropriate for a magistrate to dismiss or strike out the charges (assuming the complaint about the charge has merit):[15]

35 The Court then went on to consider each of the individual proceedings before it in light of the above principles.

36 Turning now to some of the earlier authorities, in DPP Reference No 2 of 2001; Collicoat v DPP; Bell v Dawson[16] ('DPP Reference No 2 of 2001'), the Court of Appeal considered the essential ingredients that must be particularised for an offence committed against ss 49(1)(f) and 49(1)(e) of the Act. Both of the matters before the Court concerned claims that a charge was defective by failing to properly allege the offence in question.

37 The defendant in DPP Reference No 2 of 2001,[17] Mr Callegher was charged under s 49(1)(f) of the Act after furnishing a breath sample in accordance with s 55(1) of the Act, which showed an excessive concentration of alcohol was present in his breath. The charge against Mr Callegher failed to specify that a preliminary breath test was undertaken pursuant to s 53(1) of the Act. Following an appeal to the County Court, the judge held that the charge was a nullity, as it did not disclose an offence known to law. On that basis, it was also inappropriate to consider any amendment to the charge.

38 In Collicoat v DPP,[18] the defendant was charged with an offence under s 49(1)(e) of the Act. Counsel for the defendant had submitted that the charge was defective as it did not contain every element of the offence, and did not specify that the defendant was in one of the four categories of persons outlined in s 53(1) of the Act.

39 The defendant in Bell v Dawson[19] was also charged with an offence under s 49(1)(e) of the Act. Counsel for the defendant submitted that the charge was invalid as it failed to allege an offence known to the law, and that it failed to allege a lawful requirement and a refusal to comply with that requirement.

40 The Court held that not every element of an offence must be particularised in a charge. The Court held that that the category of person to which a defendant belongs under s 53(1) of the Act is not an essential ingredient of the offence, and its omission did not render the charge defective or a nullity. Similarly, while proving an offence under s 49(1)(f) of the Act requires establishing that the defendant was required to provide a breath sample for analysis under ss 53 and 55, these matters are not essential elements of the offence that must be individually particularised in a charge under s 49(i)-(f) of the Act.[20]

41 Further, Charles JA held that a requirement to accompany a police officer under s 55(1) of the Act was an essential ingredient of the charge.[21] However, the use of the verb "refuse" in the charge conveyed sufficiently to the defendant that his alleged refusal must have followed some requirement or request to accompany.[22] His Honour held that:

[A] charge should be interpreted in the manner a reasonable defendant would understand it, giving reasonable consideration to the words of the charge, in their context.

...

Reading the charge against Bell as a reasonable defendant should, I think the defendant would be perfectly capable of reaching a correct conclusion as to the nature of the subject matter of the charge and its essential ingredients.[23]

42 In DPP v Sheerin,[24] the applicant was required to undertake a preliminary oral fluid test pursuant to s 55D of the Act. The applicant was then required to accompany the police officer to complete an oral fluid test pursuant to s 55E(2)(a) of the Act. The applicant became agitated and left without completing the test, and was subsequently charged with an offence under s 49(1)(eb) of the Act.[25]

The accused at Inverloch on 11/02/2018 within 3 hours of being the driver of a motor vehicle was required to provide a sample of oral fluid for testing pursuant to s 55E(2)(a) of the Road Safety Act 1986 and for the purpose he accompanied a police officer to a testing vehicle and did refuse to remain at the location prior to providing a sample in accordance with section 55E.

44 The applicant submitted that the charge lacked an essential element as the charge-sheet did not specify that the applicant was 'required to remain'. A magistrate dismissed the charge. On an appeal by the prosecution to the Trial Division, Macaulay J allowed an appeal on a question of law and remitted the charge to the Magistrates' Court.

45 His Honour rejected a submission that the charge was ambiguous, and held that implicit in the allegation that the accused had 'refused to remain' was that there had been a requirement to remain. His Honour commenced his analysis of s 55E of the Act as follows:

Careful attention must be paid to the structure and composition of s 55E(2). Paragraphs (2)(a) and (b) set out conditions which, if either occurs, trigger the operative provision. The operative provision comes immediately after para (2)(b) commencing with words 'any police officer or' and ending with the word 'until'. Paragraphs (2)(c) and (d) state the events that conclude the obligations created by the operative provision.

As emphasised in the text above, the operative provision authorises the police officer to make three requirements of a person if the conditions in para 2(a) or (b) are met, namely:

(a) to provide a sample of oral fluid for testing;

(b) and for that purpose,

(i) to accompany a police officer to a place or vehicle where the sample is to be provided; and

(ii) to remain there until the sooner of the time periods in para (2)(c) or (d) elapses.[26]

46 His Honour then went on to consider other analogous provisions in the Act, as follows:

There have been a number of cases which have addressed similar provisions to s 49(1)(eb) and s 55E except that, rather than being concerned with oral fluid tests for the presence of an illicit drug, the provisions in those cases concerned breath analysis tests for the presence of alcohol.

Section 49(1)(e) of the Act creates offences for refusing to comply with requirements made under s 55(1) of the Act (among other specified sub-sections) to provide a sample of breath following the administration of a preliminary breath test. Section 55(1) has a structure and terminology that is, relevantly, the same as s 55E(2). It has been held that s 49(1)(e) creates as many offences of failing to comply with a requirement under s 55 as there are different kinds of requirements under s 55.

Here, the 'Charge - Sheet and Summons' stated that the law under which the charge was laid was s 49(1)(eb) of the Act. So Mr Sheerin was informed that he was charged under a law making it an offence to refuse to provide a fluid sample under s 55D or s 55E or to comply with another requirement made under one of those sections. By the same reasoning that has been applied to the breath test provisions, s 49(1)(eb) creates as many offences of failing to comply with a requirement under s 55E in relation to oral fluid testing as there are different kinds of requirements under s 55E.

The offences created by s 49(1)(eb) include a refusal to provide a sample when required under s 55E to do so or a refusal to comply with any of the specific requirements authorised to be made in s 55E - relevantly to this case, in s 55E(2). Those specific requirements are the three I have identified, all contained in the operative part of the subsection, namely: to provide the sample, and for that purpose to accompany and then to remain (until the sooner of two things occur). The second and third are facilitative of the first yet give rise to divisible obligations the contravention of which give rise to separate offences.

None of the three requirements belong peculiarly to any one of the individual sub-paragraphs in s 55E(2)(a), (b), (c) or (d). Instead, between them, those subparagraphs state the conditions which must exist for the police to make any of the requirements and define the time period within which the obligation to comply with a requirement extends. Specifying either s 55E(2)(a) or (b) tells the defendant the condition that triggered the authority for the police to make a requirement. The text of charge in this case alleges that Mr Sheerin

... was required to provide a sample of oral fluid for testing pursuant to section 55E(2)(a) ...

So, it is clear that it is alleged that he was required to provide the oral fluid sample (the primary requirement). Because of the explicit reference to s 55E(2)(a), the charge identifies that the condition relied on for making that requirement was that, in the police officer's opinion, a preliminary test administered under s 55D had returned a positive result.

The circumstance that gives rise to the power to make the requirement to provide the sample also gives rise to the power to make the further, facilitative requirements to accompany the police officer to the testing station and to remain there until the sample is provided and the result obtained, or 3 hours since driving elapses (whichever is sooner).[27]

47 His Honour went on to say that '[a] charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context'[28] and concluded that there was no 'doubt, confusion, ambiguity or uncertainty as to the nature of the requirement that was relied upon as the basis for the offence charged'.[29] His Honour also rejected the contention that the charge was defective for not expressly alleging a requirement to remain. Referring to the decision of the Court of Appeal in DPP Reference No 2 of 2001,[30] (see paragraph 41 of these reasons) Macaulay J stated '[i]t is sufficient to state that the charge as framed is not invalid or defective for lacking any express reference to such a requirement being made'.[31]

48 The Court of Appeal refused leave to appeal from the decision, stating as follows:

Turning then to the relevant provisions, the offence is created by s 49(1)(eb) of the Act, not s 55E. The key concepts are 'refuses' and 'requirement under section 55E.' As the trial judge correctly stated, s 55E authorises the police officer to make three requirements of a person if the precondition under ss 55E(2)(a) or 55E(2)(b) is met. One of those requirements is the 'requirement to remain'.

The charge correctly records that it was brought under s 49(1)(eb). It also relevantly recites that the applicant was required to provide a sample of oral fluid for testing 'pursuant to s 55E(2)(a)'. The charge thus makes clear that the relevant precondition relied upon is that provided for by s 55E(2)(a) and it is thereby distinguishable from the impugned charge in Kypri. The charge further identifies that the applicant accompanied the police officer to a testing vehicle and refused to remain there for the purpose of provision of the oral fluid sample.

The specific allegation that the applicant did 'refuse to remain' also specifies which requirement was allegedly refused for the purposes of s 49(1)(eb). The language of 'refusal' is indistinguishable from that in [DPP Reference No 2 of 2001]. Consistent with the reasoning in that case, we consider that a reasonable defendant would understand the reference that the applicant did 'refuse to remain' as implicitly including an allegation that a requirement to remain had been given. [DPP Reference No 2 of 2001] remains good law and nothing said on behalf of the applicant suggested otherwise. The principles enunciated therein have stood as sound for many years.

It follows that no error was made by the trial judge in holding that a requirement to remain was implied in this case.[32]

49 Counsel for the plaintiff relied upon the decision of the Court of Appeal in Kypri,[33] where the Court held that a refusal to accompany charge was fundamentally defective as it omitted the subsection of s 55 which authorised the requirement to accompany, in circumstances where multiple subsections of s 55 create different requirements.

50 The accused was charged with refusing to accompany a member of the police force to undergo a breath test under s 49(1)(e) of the Act. The accused submitted before a magistrate that the charge was improperly drawn and duplicitous due to the omission of the relevant subsection of s 55 of the Act which gave rise to the requirement to accompany. In particular, it failed to identify whether the requirement was made under s 55(1) or s 55(2) of the Act.

The defendant at Doncaster on 27 November 2005 having been required to furnish a sample of breath for analysis by a breath analysing instrument under s 55 of the Road Safety Act 1986 and for that purpose a requirement was made for him to accompany a member of the police force to a police station did refuse to comply with such requirement to accompany the member of the police force prior to three hours elapsing since the driving of a motor vehicle.

52 The prosecution submitted that identifying the relevant subsection of s 55 of the Act under which the requirement was made was not an essential element of the offence. The magistrate found that the charge was defective and that identifying the relevant subsection of s 55 of the Act was an essential ingredient of the offence. An appeal from the magistrate's decision was rejected by a trial judge.

53 The prosecution appealed to the Court of Appeal. A substantial argument on appeal concerned whether it was permissible to amend the charge to specify the subsection of s 55 under which the requirement was made. However, as the statutory power of amendment with which the Court was concerned with has now been superseded by s 8 of the CPA, some of this discussion is not relevant to the present case.[34] However, the Court's observations as to what constitute the essential elements of an offence under s 49(1)(e) of the Act, which is an analogous provision to s 49(1)(eb) of the Act, remain good law.

[Section] 49(1)(e) creates as many different offences (of failing to comply with a requirement under s 55) as there are different kinds of requirements under s 55.

It being so, the proper characterisation of an act which comprises an offence under s 49(1)(e) is one of failure to comply with a particular kind of requirement under s 55. It follows that, in order to identify the act which comprises the offence, it is necessary to identify the particular kind of requirement under s 55 with which it is alleged that there was non-compliance. Hence, it is an essential element.[35]

A charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context. If, therefore, the contents of the charge and the summons are sufficient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, the charge will not be invalid.[36]

56 His Honour (with whom Ashley and Tate JA agreed) concluded as follows:

To start with, the charge did not describe the offence in the terms of s 49(1)(e). Section 49(1)(e) refers to the several subsections of s 55 individually. The charge did not. It referred collectively or globally to s 55 as a whole. Further, because s 49(1)(e) operates in an ambulatory fashion, creating offences by reference to contraventions of obligations otherwise appearing in several different subsections of the Act, it is semantically inapt to speak of something as framed in terms "similar" to s 49(1)(e) unless it specifically identifies the particular obligation which is alleged to have been breached. Furthermore, and perhaps for that reason, it has been held that a provision like s 27 has no application in relation to an ambulatory provision like s 49(1)(e). In Woolworths (Victoria) Ltd v Marsh, Ormiston J said:

... It cannot have been intended that [the section] should be relied upon merely by the recitation of the words of the "offence" section for that would tell the defendant nothing.

To say so does not mean that every charge which alleges an offence under s 49(1)(e) is fatally flawed unless it refers by name to the subsection of s 55 under which the requirement is alleged to have been made. A charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context. If, therefore, the contents of the charge and the summons are sufficient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, the charge will not be invalid. Failure to name the subsection would be a breach of s 27 of the Magistrates' Court Act. But that would be the sort of breach which could be rectified by amendment. It would not affect the essential validity of the charge or, necessarily, the validity of any conviction obtained on it. Where, however, as here, the charge and summons do not allege sufficient facts to enable a reasonable defendant to determine ex facie the subsection of s 55 under which the requirement is alleged to have been uttered, the charge is defective because it fails to convey the nature of the offence alleged.[37]

57 In her concurring reasons, Tate JA agreed with Nettle JA that identifying the relevant subsection of s 55 is an essential element of the offence under s 49(1)(e), noting that the relevant requirement could only have been made under ss 55(1) or (2), as the other requirements in s 55 were of a different character. Accordingly, from the perspective of the accused, the only uncertainty caused by the charge was limited to the differences between ss 55(1) and s 55(2). Her Honour observed as follows:

The italicised portions in the extracts above show the extent of the commonality of language in the two subsections. The differences that remain relate principally to the belief of the police officer who imposes the requirement; in each case the reasonable belief of the police officer is a precondition to the officer imposing the requirement that the person furnish a sample of breath for analysis by a breath analysing instrument. In the case of s 55(1), the police officer may believe that the preliminary breath test indicated that the person's breath contained alcohol or that the person refused or failed to exhale continuously into the device used to obtain the preliminary breath test. By contrast, under s 55(2) the relevant belief of the police officer is that the person has committed the offence of being incapable of proper control of the vehicle he or she is driving or is in charge of, because he or she is intoxicated, or a belief that the alcohol concentration in the person's blood or breath equals or exceeds the prescribed limit.

The differences between s 55(1) and 55(2) are significant. They reveal differences in the context in which the requirement to accompany and furnish has been made.[38]

58 One must be careful when relying too heavily on analogies with other cases concerning other statutory provisions when determining applications of the current kind. Ultimately, determining what information needs to be included in a charge-sheet such as to support an effective charge involves an exercise of judgment, as the authorities make it clear that a charge-sheet does not need to refer to every fact that the prosecution will need to prove at trial. However, while proceedings concerning analogous provisions are not determinative, they can be very helpful in informing that exercise of judgment, particularly where there has been comprehensive judicial consideration of other provisions in the same statutory scheme. In the current case, other decisions concerning the construction of other provisions in the statutory scheme relating to offences involving driving while under the influence of alcohol and/or other drugs are relevant and helpful.

59 Further, it helps to not be too distracted by the error in the charge-sheet. After all, the statutory power of amendment is to facilitate the correction of errors, with a more stringent test applicable to those errors sought to be corrected outside the relevant limitation period. The question in this case is whether correcting the error would, in effect, charge the plaintiff with a new offence. In order to make that determination, one must compare the original charge-sheet with the amended charge-sheet.[39]

60 As indicated earlier in these reasons, the plaintiff submitted that the charge in the current case is on all fours with the facts and circumstances in Kypri.[40] In Kypri,[41] the Court of Appeal was concerned with provisions of the Act which are analogous to ss 55D and 55E, being ss 53 and 55 of the Act.

61 Sections 53 and 55 of the Act are, in substance, mirror provisions to ss 55D and 55E of the Act, save that ss 53 and 55 are concerned with breath testing and analysis for alcohol, and ss 55D and 55E are concerned with oral fluid testing and analysis for illicit drugs.

(a) any person he or she finds driving a motor vehicle or in charge of a motor vehicle; or

(b) the driver of a motor vehicle that has been required to stop, and remain stopped at a preliminary testing station under section 54(3); or

(c) any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident; or

(d) any person who he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a motor vehicle when it was involved in an accident, if it has not been established to the satisfaction of the police officer which of the occupants was driving or in charge of the motor vehicle when it was involved in the accident -

to undergo a preliminary breath test by a prescribed device.

63 As can be seen from the above, the terms of s 53(1) and the terms of s 55D(1), which is extracted at paragraph 3 of these reasons, are in identical terms. However, the terms of s 55 and s 55E, while similar, are not in identical terms.

64 Section 55 of the Act imposes five separate requirements, including:

(a) a requirement to furnish a sample of breath for analysis by a breath-analysing instrument following a preliminary breath test, or a failure or refusal to carry out the preliminary breath test in the manner specified by s 53(3) of the Act, and for that purpose to accompany a police officer or other authorised person to a place or vehicle and remain there until certain conditions are fulfilled (s 55(1));

(b) a requirement to furnish a sample of breath when a police officer reasonably believes that a person has committed an offence under ss 49(1)(a), (b) or (bc)[42] (s 55(2)) and for that purpose to accompany a police officer to a place or vehicle and remain there until certain conditions are fulfilled;

(c) a requirement that any person required to undergo a drug assessment under s 55A of the Act to furnish a sample of breath and for that purpose remain at the place at which the person is required to remain for the purpose of the drug assessment until certain conditions are fulfilled (s 55(2AA));

(d) a requirement that a person furnish a further sample or samples of breath where the breath analysing instrument is malfunctioning, or the previous sample provided was insufficient (s 55(2A)); and

(e) a requirement that a person required to furnish a sample of breath allow a medical practitioner to take a blood sample in two different circumstances, and for that purpose to accompany a police officer to a place and remain there until certain conditions are fulfilled (s 55(9A)).

65 Accordingly, s 55 of the Act imposes a requirement to furnish a sample of breath in up to six different circumstances, a requirement to furnish a further sample or samples of breath in two different circumstances, and a requirement to permit a blood sample to be taken in two different circumstances.

66 By way of comparison, s 55E of the Act imposes the following requirements:

(a) a requirement that a person provide a sample of oral fluid in two different circumstances, and for that purpose a further requirement that the person accompany the law enforcement officer to a place or vehicle and remain there until certain conditions are fulfilled (s 55E(2));

(b) a requirement that a person who has been required to undergo an assessment of drug impairment under s 55A or to furnish a sample of breath for analysis under s 55 to provide a sample of oral fluid for testing, and for that purpose, a further requirement that the person remain at the place where the assessment or breath test took place until certain conditions are fulfilled (s 55E(3));

(c) a requirement that a person provide a further oral fluid sample where the testing device is malfunctioning, or the previous sample provided was insufficient (s 55E(5)); and

(d) a requirement that a person required to provide an oral fluid sample pursuant to ss 55E(2) or (3) permit a medical practitioner to take a blood sample in certain circumstances (s 55E(13)).

67 While there are differences in both the text and structure of ss 55 and 55E, it is clear from the above summary that they are, if not exactly mirror provisions, at least close companion provisions. The differences reflect the differences in the regimes for alcohol testing and drug testing, or are largely cosmetic, noting that ss 53 and 55 have been in the Act in some form since the Act's enactment in 1986. Sections 55D and 55E were introduced by amending legislation in 2003, which could account for the different drafting techniques in these provisions.

68 Further, s 55(1) and s 55E(2) are, for all intents and purposes, identical provisions, in that they impose a requirement to furnish a sample of breath or oral fluid for analysis in circumstances where a person has submitted a sample of breath or oral fluid for preliminary analysis which has yielded a positive result, or where that person has refused to undergo a preliminary breath or oral fluid test.

69 Accordingly, any submission to the effect that the current case can be distinguished from the case before the Court of Appeal in Kypri,[43] because Kypri was concerned with a different provision of the Act cannot be accepted. Some of the reasoning in Kypri[44] regarding the ability to amend a defective charge now falls away by reason of the enactment of s 8 of the CPA, as the Court was concerned with a statutory power of amendment which has now been superseded by s 8 of the CPA. However, insofar as Kypri[45] concerns what amounts to the essential ingredients of an offence, and what amounts to the charging of a new offence, Kypri remains good law.

70 However, the decision in Kypri[46] was concerned with a different question, being whether it was necessary, in circumstances where there was a clear line of authority to the effect that s 49(1)(e) created as many offences as there were requirements under s 55 of the Act, to specify in a charge the relevant subsection of s 55, as it was an essential element of the offence. Applying that reasoning to s 55E of the Act, it would be necessary for a charge to specify whether the relevant requirement was imposed under s 55E(2) or (5) of the Act. However, what was not decided in Kypri[47] was the issue in the current proceeding, being whether it was necessary to specify the precondition for imposing the requirement.

71 The decisions of the Court of Appeal in DPP Reference No 2 of 2001[48] and Fox[49] make it clear that not every matter referred to in a statutory provision under which an accused is charged must be referred to in the charge-sheet.

72 In DPP Reference No 2 of 2001,[50] Charles JA said as follows:

A breath test under s.55(1) is, no doubt, based upon the operation of s.53, since s.55 empowers a police officer to require a person to furnish a sample of breath for analysis by a breath analysing instrument only if there has been a preliminary breath test under s.53. I agree with the County Court judge, with respect, that a fact which must therefore be established in the proof of an offence under s.49(1)(f) is that a motorist has been "required" to furnish a sample of breath for analysis under s.53, having regard to what was said in Mills v. Meeking, and the authorities previously quoted in paragraph [22] above, and in particular the remarks of both Winneke, P. and Ormiston, J.A. in DPP v Foster and Bajram. But there are a number of facts which must be established as part of the proof of such an offence, such as for example that the instrument used was a breath analysing instrument within the meaning of the Act and that the person who operated the instrument was duly authorised to do so. Of course it does not follow that all such facts, necessary though they may be to proof of the offence under s.49(1)(f), must be alleged in the charge. In my view the essential elements of the offence under s.49(1)(f) are prescribed by the section itself and do not by direct or indirect reference incorporate any other allegation of fact necessary to exist in order to create the offence. In my view this Court, indeed, decided to the contrary in Foster and Bajram, in the passages last cited. It follows that while there must be evidence led as to the practical operation of ss.53 and 55 in circumstances of a prosecution under s.49(1)(f), as a necessary precondition of proof of the relevant offence, these matters do not constitute essential elements of the offence so as to require individual particularisation in the charge. I conclude, therefore, that the charge as drawn referred to each of the matters capable of identification as an essential element in a charge under s.49(1)(f), and was therefore neither defective nor a nullity.[51]

73 In Fox,[52] in the part of the Court's reasons dealing with Mr Nunn's appeal, the Court of Appeal rejected the contention that, where charges were laid under s 49(1)(bb) and s 49(1)(i) (driving with excessive concentrations of illicit drugs and alcohol respectively), it was not necessary for the charge to specify the times of driving and the taking of the blood sample, or all of the relevant matters under s 55E, including the power to require the driver to submit to testing procedures.

74 The Court distinguished the issues in Mr Nunn's appeal from the circumstances before the Court in Kypri,[53] stating as follows:

The position here concerning specification of the relevant powers is not analogous to that addressed by this Court in Kypri. In Kypri, the Court was dealing with a charge under s 49(1)(e) of the RSA of having refused to furnish a sample of breath pursuant to a requirement to do so under s 55 of the RSA. The problem with the charge in that case was that there were different kinds of requirements under s 55 and the particular requirement in issue was not specified. In that context, a contrast between two different kinds of offences was emphasised.

...

Here, the charges are, respectively, driving with a prescribed concentration of drugs (s 49(1)(bb)), and having a concentration of a drug in a blood sample within three hours of driving (s 49(1)(i)). Neither of those provisions is analogous to s 49(1)(e) as addressed in the above passages. Rather, each is analogous to s 49(1)(f). That is, each creates but one offence. In particular, although s 49(1)(i) refers to various other sections within the RSA that can authorise the taking of a sample of blood, it does not create as many different offences as there are different kinds of authorisations under ss 55, 55B, 55BA, 55E or 56.

It may be accepted that, in order to prove the charge under s 49(1)(i), it may be necessary for the prosecution to prove facts concerning the circumstances in which the blood sample was taken. However, it does not follow that those circumstances were required to be included in the charge.[54]

75 Sections 55D and 55E also prescribe who is authorised to make the relevant requirement and who is authorised to operate the relevant measuring instrument, and include a number of other ancillary provisions. Matters such as whether the relevant persons were appropriately authorised would need to be proved at trial, but it seems to me that it is highly unlikely that these matters would be considered to be essential elements of the offences under ss 49(1)(e) or 49(1)(eb) of the Act. Similarly, in DPP Reference No 2 of 2001,[55] the Court found that, where a person was charged with an offence under s 49(1)(f) of the Act (where a test of a sample of breath furnished under s 55 of the Act following a preliminary breath test under s 53 shows an excessive concentration of alcohol), it was not necessary for the charge to specify what category of driver referred to in s 53 (which required the driver to undergo a preliminary breath test) the driver fell within.

76 In contrast, it is beyond doubt that an essential element of the offences referred to above is that there be a 'requirement' and a refusal to comply with the requirement.[56] Where there is room for argument, as in the current case, is whether an essential element of the offence includes matters such as the precondition for the requirement being imposed.

77 Given that s 55(1) and s 55E(2) are analogous provisions, it is necessary to consider whether, in light of the reasoning in Kypri,[57] the original charge-sheet disclosed the essential elements of the offence under s 49(1)(eb) of the Act, and, more importantly, whether the amendment to the charge-sheet allowed by the learned magistrate was in effect the commencement of a proceeding for a new offence.

78 Turning first to the question of whether the charge-sheet disclosed the essential elements of the charge, the critical question is whether specifying the precondition is an essential element of the charge. The reasons of the Court of Appeal in Kypri,[58] in my view, provide support for both sides of the argument.

79 To explain further, while s 49(1)(e) makes it an offence not to comply with any one of the requirements in s 55 of the Act, in Kypri,[59] only two were relevant requirements given the facts, namely the requirements in s 55(1) and (2) of the Act. The Court held that the identification of the particular requirement and the relevant subsections of s 55 was an essential element of the offence which must be disclosed in the charge: that is, it was necessary for the charge-sheet to show whether the charge was brought relying upon a requirement in ss 55(1) or (2).

80 In the current case, the informant submitted that the analysis in Kypri[60] supported a conclusion that all that was necessary to specify in a charge was the making of the requirement. There was only a single 'requirement' in s 55E(2), being the requirement to provide an oral fluid sample, not the multiple requirements under s 55. That submission is correct, insofar as the author of the leading judgment, Nettle JA, said that it was necessary to specify the relevant subsection of s 55 of the Act. However, Nettle JA was silent on the question of whether, if s 55(1) was the subsection which imposed the relevant requirement, it was necessary to specify which one of the preconditions in s 55(1) applied.

81 Support for the submission advanced by the plaintiff to the effect that it is necessary to specify the precondition in the charge can be found in a closer analysis of, on the one hand, ss 55(1) and (2) and, on the other hand, s 55E(2). As observed by Tate JA in the discussion reproduced at paragraph 57 of these reasons, there is a great deal of commonality in the language of ss 55(1) and (2). The material difference between the provisions 'relate principally to the belief of the police officer who imposes the requirement [being the] precondition to the officer imposing the requirement'.[61]

82 Her Honour then went on to say '[t]he differences between s 55(1) and s 55(2) are significant. They reveal differences in the context in which the requirement to accompany and furnish has been made'.[62] However, given that there are also material differences in the context in which the requirement to accompany and furnish was made within s 55(1) (and by analogy, within s 55E(2)), then her Honour's observations provide support for the proposition that the relevant precondition was a necessary element of the offence. However, given that her Honour (and Ashley JA) otherwise agreed with the conclusions of Nettle JA to the effect that the failure of the charge in question to disclose the subsection of s 55 under which the requirement was made rendered the charge ineffective, her Honour's remarks were, strictly speaking, obiter.

83 The plaintiff's contentions also find some support in the observations in DPP v Sheerin,[63] and on appeal in Sheerin v DPP.[64] In DPP v Sheerin,[65] the relevant charge did refer, correctly, to the precondition in s 55E(2)(a). Macaulay J noted the inclusion of the precondition in the charge, stating as follows:

None of the three requirements belong peculiarly to any one of the individual sub-paragraphs in s 55E(2)(a), (b), (c) or (d). Instead, between them, those subparagraphs state the conditions which must exist for the police to make any of the requirements and define the time period within which the obligation to comply with a requirement extends. Specifying either s 55E(2)(a) or (b) tells the defendant the condition that triggered the authority for the police to make a requirement. The text of charge in this case alleges that Mr Sheerin

... was required to provide a sample of oral fluid for testing pursuant to section 55E(2)(a) ...

So, it is clear that it is alleged that he was required to provide the oral fluid sample (the primary requirement). Because of the explicit reference to s 55E(2)(a), the charge identifies that the condition relied on for making that requirement was that, in the police officer's opinion, a preliminary test administered under s 55D had returned a positive result.[66]

84 On appeal, the Court observed that '[t]he charge thus makes clear that the relevant precondition relied upon is that provided for by s 55E(2)(a) and it is thereby distinguishable from the impugned charge in Kypri'.[67] Implicit in that statement is a view that one of the deficiencies in the charge in Kypri[68] was its failure to specify the precondition.

85 However, the observations made by the trial judge and the Court of Appeal need to be read in the context in which they were made. There, the issue was concerned with whether the charge was defective and invalid, and was capable of informing the accused of the case he had to meet, in circumstances where no application had been made to amend the charge to rectify any asserted defect or ambiguity. In the current case, the learned magistrate was (and this Court is) concerned with whether it was permissible to amend the error to correct an obvious error. That is, the critical issue in this proceeding is whether the amendment allowed by the learned magistrate had the effect of commencing a proceeding for a new offence. Accordingly, the observations made are relevant to, but not determinative of the critical issue in this proceeding.

86 Section 8 of the CPA permits a charge-sheet to be amended after the expiry of the limitation period if the charge-sheet before the amendment sufficiently disclosed the nature of the offence, the amendment does not amount to the commencement of a proceeding for a new offence, and the amendment will not cause injustice to the accused. These requirements are cumulative, not mutually exclusive.

87 Furthermore, as discussed earlier in these reasons, the Court of Appeal in Fox[69] has made it clear that the failure to include an essential element of an offence in a charge does not render a charge incapable of amendment, if the proposed amendment otherwise satisfies the requirements of s 8 of the CPA, with a stricter regime to apply where the charge is sought to be amended outside the relevant limitation period.

88 Turning first to the requirement that the original charge-sheet sufficiently disclosed the nature of the offence, I consider that the learned magistrate was correct to conclude that the original charge-sheet did disclose sufficient information to the plaintiff concerning the nature of the offence. In Fox,[70] the Court of Appeal observed that the requirement in s 8(4)(a) is not an exacting standard.[71]

89 While the error in the charge-sheet is unfortunate, it seems somewhat artificial to conclude that the plaintiff could not understand the offence with which he was charged in circumstances where it is common ground that he underwent a preliminary oral fluid test, and then allegedly refused to comply with the requirement to accompany a police officer to a vehicle to provide a further sample of oral fluid. The preconditions referred to in ss 55E(2)(a) and (b) are substantively very different, such that the error in the charge-sheet was obvious, and unlikely to cause confusion. The charge-sheet made it clear that the plaintiff was charged with an offence under s 49(1)(eb) of the Act, and that the plaintiff had been required to provide a preliminary oral fluid test under s 55D of the Act, and specified further that the plaintiff was required to accompany the police officer to the vehicle to furnish a further sample and had refused to do so.

90 Further, the charge-sheet complied with the requirement that a charge-sheet must 'specify whatever is necessary to show that the person convicted has done something which brought him within the words of the statute'.[72] Here, the relevant 'statute' is s 49(1)(eb) of the Act. By referring to the requirement to provide a sample of oral fluid and to accompany a police officer to do so, and the plaintiff's refusal to do so, the charge specified the legal nature of the charge, the acts and omissions of the plaintiff said to constitute the contravening conduct, and explained, albeit in shorthand form, how the plaintiff's conduct was said to constitute an offence under s 49(1)(eb) of the Act.

91 However, that the charge-sheet sufficiently disclosed the nature of the offence to the plaintiff is not the end of the matter. Given that the finding of the learned magistrate to the effect that the amendment to the charge-sheet would not cause the plaintiff injustice is a finding of fact not amenable to judicial review unless manifestly unreasonable,[73] the critical issue is whether the amendment to the charge to specify the correct precondition had the effect of commencing a proceeding for a new offence.

92 In Kypri,[74] Nettle JA stated that 's 49(1)(e) creates as many different offences (of failing to comply with a requirement under s 55) as there are requirements under s 55'.[75]

93 However, as discussed earlier in these reasons, the operative requirements in ss 55(1) and 55(2) were the same requirements. The only material difference between these provisions were the circumstances in which the same requirements (being the requirement to furnish a sample of breath, and if necessary, the requirements to accompany and remain) were imposed. Notwithstanding that the actual requirement was the same, the Court found that ss 55(1) and 55(2) created separate offences.

94 Applying that reasoning by analogy to s 55E(2) of the Act, then it is at least arguable that s 55E(2) creates two separate offences: an offence where the requirement to provide an oral fluid sample is triggered by s 55E(2)(a), and a separate offence where the requirement to provide an oral fluid sample is triggered by s 55E(2)(b).

95 However, a conclusion that s 55E(2) creates two separate offences of refusing a requirement to accompany is not supported by the authorities, in particular, the decision of DPP Reference No 2 of 2001,[76] as shown by the passage extracted at paragraph 72 of these reasons.

96 There, Charles JA said that 'the essential elements of the offence ... are prescribed by the section itself and do not by direct or indirect reference incorporate any other allegation of fact necessary to exist in order to create the offence'.[77] Hence, while it was necessary (in the case of an offence under s 49(1)(f) of the Act) for the charge to specify that there had been a requirement to provide a sample of breath for analysis under s 55 of the Act, other matters concerning the practical operation of ss 53 and 55 of the Act did not have to be specified in the charge, notwithstanding that it would be necessary to prove those matters at trial. The Court found that it was not necessary for the charge to specify that prior to being required to undergo a breath test under s 55(1) (which resulted in the accused being charged under s 49(1)(f)), the accused had been required to undergo a preliminary breath test under s 53(1) of the Act, despite the requirement under s 53(1) being a precondition to the imposition of the requirement in s 55(1) of the Act.

97 Applying the reasoning in DPP Reference No 2 of 2001[78] to an offence under s 49 (1)(eb) of the Act, while it is an essential element of the offence that there be a 'requirement' and a 'refusal' under s 55E(2) of the Act, it is not necessary for the charge to specify the precondition for imposing the requirement, and the amendment of the charge-sheet allowed by the learned magistrate did not commence a proceeding for a new offence.

98 In Sheerin v Director of Public Prosecutions,[79] the Court of Appeal expressly rejected a submission by the appellant to the effect that the decision of the Court of Appeal in Kypri[80] implicitly overruled the decision in DPP Reference No 2 of 2001,[81] and said further that the reasoning in that decision remained good law.[82]

99 Further, at first instance, in the passage extracted at paragraph 45 of these reasons, Macaulay J referred to the 'operative provision' within s 55E(2) of the Act as commencing after s 55E(2)(b), being the provision authorising the police to make three requirements of a person, being the requirement to provide a sample of oral fluid for testing, the requirement to accompany a police officer to a place or vehicle where the sample is to be provided, and a requirement to remain there until the sooner of the time periods in sub-paragraphs (2)(c) or (d) elapses.[83]

100 Similarly, on appeal, the Court referred to the offence with which the accused was charged as having been created by s 49(1)(eb) of the Act, not s 55E, and that the 'key concepts' are 'refuses' and 'requirement under s 55E'.[84]

101 In Kypri,[85] Nettle JA stated, emphatically, that 's 49(1)(e) creates as many different offences as there are requirements under s 55'. He did not say 'at least as many requirements'.

102 The dictionary definition of 'requirement' provides relevantly, as follows:

1. that which is required; a thing demanded or obligatory...

2. the act or an instance of requiring.[86]

103 While judicial reasons are not to be construed in the same manner as a legislative provision, there is no reason to conclude that in the numerous decisions which have referred to the 'requirements' under various provisions of the Act as constituting the essential elements of the various offences created by the Act, or the reference to there being as many offences as there are requirements, the authors intended to refer to anything other than the ordinary meaning of requirement. That is, it is a stretch that what they really meant when referring to a 'requirement' was 'the requirement and the precondition for imposing the requirement'.

104 Finally, in her concurring reasons in Kypri,[87] Tate JA referred to a number of decisions where a court has held that a charge was defective, but not invalid, because 'there are errors in the identification of the relevant statutory provision but the errors are obvious and the intended meaning plain'.[88] Her Honour referred to the decision of Smith J in Director of Public Prosecutions v Whittleton,[89] ('Whittleton') where a charge referred to s 51(1) of the Act rather than s 55(1) of the Act. His Honour stated as follows:

As I read the summons, it seems quite plain to me that the substance of the charge as set out in the box labelled in the margin, "What is the charge?" was that within 3 hours of driving the motor vehicle on the day in question, the defendant furnished a sample of breath for analysis by breath-analysing instrument, and the result of analysis indicated that more than the prescribed concentration of alcohol was present in his blood, and that the actual blood alcohol content was 0.190%.

A person reading the summons would assume that the breath analysis was carried out pursuant to s 51(1) of the Road Safety Act, but that reference should not, on reading the document, mislead the reader as to the substance of the charge. The reader familiar with the legislation would immediately realise an error had been made. The reader of the summons who was unfamiliar with the Road Safety Act would, on reading the Act, realise that s 51(1) was plainly recited in error, and that it was s 55(1) that was intended to be referred to in the statement of charge.

A reader of the summons, having read the statement of charge, would then move to the box section of the charge which is entitled "Under what law?". In information contained in that section it is stated that it is brought under a State Act, the Road Safety Act, No 127 of 1986; and the section under which the charge is brought is s 49(1)(a).

Again the reader should not be misled. A reader familiar with the legislation would realise the wrong paragraph had been named. One unfamiliar with the legislation would, on reading the Act, realise that an error had been made in referring to para (a) and the reference should have been to para (f). The detailed statement of the actual charge must, on any fair reading of the summons, be given primacy, and to the extent that it conflicts with other information given, the prima facie conclusion should be that the latter is wrong, and that the statement of the charge records the substance of the charge laid.

It seems to me that this is the only reasonable interpretation of the summons in this case, and that, accordingly, it did disclose an offence. In its statement, however, slips and clumsiness occurred which, while requiring amendment, did not detract from the proposition that an offence was disclosed in the details stated in the charge.

If, strictly speaking, it did not disclose an offence, the summons would, none the less, come within the category of case described by Dixon J in Broome v Chenoweth, (1946) 73 CLR 583 at 601, for which amendment should be permitted in a proper exercise of the discretion. The amendments would not be substituting a new charge, but clarifying the charge that had been laid.[90]

105 While both Kypri[91] an Whittleton[92] were concerned with statutory powers of amendment which have now been superseded by s 8 of the CPA, the statements to the effect that allowing an amendment to an obvious error or slip has the effect of clarifying a charge that has already been laid rather than substituting a new charge remain relevant to the question of whether the amendment permitted by the learned magistrate had the effect of commencing a proceeding for a new offence. In my view, the amendment had the effect of clarifying an existing charge, not the laying of a new charge. The circumstances in Whittleton[93] are materially indistinguishable from the circumstances in the current case.

106 In Fox,[94] the Court of Appeal held that the question of whether an amendment to a charge-sheet had the effect of commencing a proceeding for a new offence for the purposes of s 8(4)(b) of the CPA is to be resolved by comparing the original charge with the charge as amended.[95] Applying that instruction to the charge in the original charge-sheet, the charge in the original charge-sheet can be restated as follows:

The accused at Meeniyan on 24/04/20 within 3 hours of being the driver of a motor vehicle was required to undergo a preliminary oral fluid test pursuant to s 55D of [the Act] and having refused or failed to carry out the test as specified in s 55D(6) of the Act was then required to accompany a police officer to a testing vehicle for the purpose of providing a sample of oral fluid for testing pursuant to s 55E(2)(b), did refuse to accompany a police officer to the vehicle in accordance with s 55E.

107 In contrast, the charge as amended by the learned magistrate can be restated as follows:

The accused at Meeniyan on 24/04/20 within 3 hours of being the driver of a motor vehicle was required to undergo a preliminary oral fluid test pursuant to s 55D of the Act and that test having indicated that the accused's oral fluid contained [particulars of illicit drug] was then required to accompany a police officer to a testing vehicle for the purpose of providing a sample of oral fluid for testing pursuant to s 55E(2)(a), did refuse to accompany a police officer to the vehicle in accordance with s 55E.

108 In my view, a comparison of the charge in the original charge-sheet with the charge as amended by the learned magistrate discloses that the amendment did not have the effect of charging the plaintiff with a new offence. While the two restatements of the charge are materially different, they both charge the same offence, being the offence of refusing to accompany a police officer to the vehicle to furnish a sample of oral fluid for testing following the making of a requirement to do so. Given that the other requirements of s 8(4) of the CPA have been met, the amendment was permissible.

109 Accordingly, the learned magistrate was not in error in allowing the amendment of the original charge-sheet, and the application for judicial review will be dismissed.

[1] [2022] VSCA 38; (2022) 66 VR 223 ('Fox').

[3] As the order made by the learned magistrate was an interlocutory order, it was necessary for the plaintiff to make an application for judicial review rather than bring an appeal.

[4] [1937] HCA 77; (1937) 59 CLR 467.

[7] [2020] VSC 51.

[10] [2022] VSCA 38; (2022) 66 VR 223.

[16] [2001] VSCA 114; (2001) 4 VR 55.

[24] (2020) 92 MVR 506.

[25] In this case, unlike the current case, the reference to s 55E(2)(a) of the Act was correct.

[26] (2020) 92 MVR 506 [12]-[13] (emphasis in original).

[30] [2001] VSCA 114; (2001) 4 VR 55.

[31] DPP v Sheerin (2020) 92 MVR 506.

[32] (2021) 95 MVR 291 [48]-[51].

[33] [2011] VSCA 257; (2011) 33 VR 157.

[34] However, while the statutory power of amendment the Court was considering in Kypri was materially different than s 8 of the CPA, in Fox [2022] VSCA 38; (2022) 66 VR 223, the Court of Appeal commended Nettle JA's approach to the analysis of whether an amendment should have been permitted.

[35] [2011] VSCA 257; (2011) 33 VR 157 [11]-[12].

[39] Fox [2022] VSCA 38; (2022) 66 VR 223.

[40] [2011] VSCA 257; (2011) 33 VR 157.

[42] Section 49(1)(a) of the Act provides that a person is guilty of an offence if they drive a vehicle while intoxicated to such an extent as to be incapable of having proper control of a motor vehicle. Section 49(1)(b) creates an offence of driving a motor vehicle with an excessive concentration of alcohol in their blood or breath, and s 49(1)(bc) creates an offence of driving a motor vehicle with an excessive concentration of alcohol in their blood or breath, and an excessive concentration of drugs in their blood or oral fluid.

[43] [2011] VSCA 257; (2011) 33 VR 157.

[48] [2001] VSCA 114; (2001) 4 VR 55.

[49] [2022] VSCA 38; (2022) 66 VR 223.

[50] [2001] VSCA 114; (2001) 4 VR 55.

[52] [2022] VSCA 38; (2022) 66 VR 223.

[53] [2011] VSCA 257; (2011) 33 VR 157.

[54] Fox [2022] VSCA 38; (2022) 66 VR 223 [192]-[194].

[55] [2001] VSCA 114; (2001) 4 VR 55 [23].

[56] Director of Public Prosecutions v Greelish [2002] VSCA 49; (2002) 4 VR 220; Kypri [2011] VSCA 257; (2011) 33 VR 157; Sheerin v DPP (2021) 95 MVR 291.

[57] [2011] VSCA 257; (2011) 33 VR 157.

[63] (2020) 92 MVR 506.

[64] (2021) 95 MVR 291.

[65] (2020) 92 MVR 506.

[67] (2021) 95 MVR 291 [49].

[68] [2011] VSCA 257; (2011) 33 VR 157.

[69] [2022] VSCA 38; (2022) 66 VR 223.

[72] Wells v Stillman [2020] VSC 51 [16], referring to the decision of the Court of Appeal in Baiada Poultry Pty Ltd v Victorian WorkCover Authority [2015] VSCA 344; (2015) 257 IR 204 [15].

[73] Fox [2022] VSCA 38; (2022) 66 VR 223 [73(h)].

[74] [2011] VSCA 257; (2011) 33 VR 157.

[76] [2001] VSCA 114; (2001) 4 VR 55.

[79] (2021) 95 MVR 291.

[80] [2011] VSCA 257; (2011) 33 VR 157.

[81] [2001] VSCA 114; (2001) 4 VR 55.

[82] Sheerin v Director of Public Prosecutions (2021) 95 MVR 291 [50].

[83] (2020) 92 MVR 506 [23].

[84] (2021) 95 MVR 291 [48].

[85] [2011] VSCA 257; (2011) 33 VR 157.

[86] Macquarie Dictionary (9th ed, 2023) 'requirement'.

[87] [2011] VSCA 257; (2011) 33 VR 157.

[89] (1991) 15 MVR 105 ('Whittleton').

[91] [2011] VSCA 257; (2011) 33 VR 157.

[92] (1991) 15 MVR 105.

[94] [2022] VSCA 38; (2022) 66 VR 223.