Plaintiff v First Defendant

1 "From little things big things grow."[1] The drafter of four charges of unauthorised disclosure of police information put the word "not" in the wrong place. Instead of alleging in each charge that the accused was "under a duty not to disclose" the relevant information, the charge stated that the accused was "not under a duty to disclose" the information. The drafter's mistake was an obvious one when one has regard to the terms of the relevant statutory provision - s 227 of the Victoria Police Act 2013 (Vic) (''VPA") - to which the charge-sheets correctly referred.

2 The learned magistrate found that by reason of the error the charges did not allege an offence known to the law and were invalid. He further found that the charges could not be amended outside the limitation period under s 8(4) of the Criminal Procedure Act 2009 (Vic) ("CPA") because, first, each charge failed to sufficiently disclose the nature of the offence (s 8(4)(a)) and, second, the amendment of each of the charges would amount to the commencement of a proceeding for a new offence (s 8(4)(b)).

3 For the reasons given below, I find that the learned magistrate erred in ruling that the charges did not disclose an offence known to the law and were invalid. I also find that the particulars of the charges were sufficient. If the charges were invalid, I find that they were capable of amendment.

4 Consequently, I will quash the learned magistrate's order striking out the charges and remit the charges to the Magistrates' Court of Victoria for hearing and determination according to law. No doubt, the prosecution, on the remitter, will seek an amendment of the charges to put the word "not" in the right place.

5 The four charges were in identical terms save for the date and location of each offence.[2] Each charge read:

The Accused on ... at ... being a member of Victoria Police did without reasonable excuse disclose police Incident Fact Sheet (IFS) information which it was not the duty of the member to disclose

6 As mentioned, each charge-sheet stated that the charges were brought under s 227 of the VPA.

7 On each charge-sheet, under the relevant charge and adjacent to a heading that read "Offence Literal", there appeared the words "Unlawful disclosure of police information".

Victoria Police Act 2013

8 The relevant provisions of the VPA are ss 3, 7, 225 & 227 which I set out below, insofar as they are relevant.

3 Definitions

(1) In this Act -

...

member of Victoria Police personnel means -

(a) a person referred to in section 7; or

(b) ...

...

7 Who constitutes Victoria Police?

Victoria Police consists of the following persons -

(a) the Chief Commissioner;

(b) Deputy Commissioners;

(c) Assistant Commissioners;

(d) other police officers;

(e) protective services officers;

(f) police recruits;

(g) police reservists;

(h) Victoria Police employees.

...

225 Definitions

In this Division -

police information means -

(a) in relation to a member or former member of Victoria Police personnel, any information that has come to the knowledge or into the possession of the member -

(i) in the performance of functions or duties or the exercise of powers as a member of Victoria Police personnel; or

(ii) otherwise as a result of being a member of Victoria Police personnel;

...

227 Unauthorised access to, use of or disclosure of police information by members or former members of Victoria Police personnel - summary offence

(1) A member or former member of Victoria Police personnel must not, without reasonable excuse, access, use or disclose any police information if it is the duty of the member or former member not to access, make use of or disclose the information.

Penalty: 240 penalty units or imprisonment for 2 years or both.

(2) Without limiting what may be a reasonable excuse, it is a reasonable excuse if the member or former member took reasonable steps not to access, use or disclose the police information.

Criminal Procedure Act 2009

9 The relevant provisions of the CPA are ss 6, 7, 8 & 9 and cls 1, 2 & 3 of Schedule 1 which I set out below, insofar as they are relevant.

6 Commencement of a criminal proceeding in the Magistrates' Court

(1) A criminal proceeding is commenced -

(a) by filing a charge-sheet containing a charge with a registrar of the Magistrates' Court; or

(b) if the accused is arrested without a warrant and is released on bail, by filing a charge-sheet containing a charge with a bail justice; or

(c) if a summons is issued under section 14, at the time the charge-sheet is signed.

(2) ...

(3) A charge-sheet must -

(a) be in writing; and

(b) be signed by the informant personally; and

(c) comply with Schedule 1.

...

7 Time limits for filing a charge-sheet

(1) A proceeding for a summary offence must be commenced within 12 months after the date on which the offence is alleged to have been committed except where -

(a) otherwise provided by or under any other Act; or

(b) the accused gives written consent, and the DPP or a Crown Prosecutor consent, to the proceeding being commenced after the expiry of that period.

...

8 Order for amendment of charge-sheet

(1) The Magistrates' Court at any time may order that a charge-sheet be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.

(2) If a charge-sheet is amended by order under this section, the charge-sheet is to be treated as having been filed in the amended form for the purposes of the hearing and all proceedings connected with the hearing.

(3) An amendment of a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of the period, if any, within which a proceeding for the offence may be commenced.

(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.

9 Errors etc. in charge-sheet

(1) A charge-sheet is not invalid by reason only of a failure to comply with Schedule 1.

(2) A charge on a charge-sheet is not invalid by reason only of -

(a) omitting to state the time at which the offence was committed unless time is an essential element of the offence; or

(b) incorrectly stating the time at which the offence was committed; or

(c) stating the offence to have been committed on an impossible day or on a day that never happened.

...

Schedule 1 - Charges on a charge-sheet or indictment

1 Statement of offence

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.

2 Statement of particulars

(1) Subject to subclause (2), particulars of the offence charged must be set out in ordinary language and the use of technical terms is not necessary.

(2) If a rule of law or a statute limits the particulars that are required to be given in a charge, nothing in this clause requires any more particulars than those required.

3 Statutory offence

(1) In this clause -

statutory offence means an offence created by an Act or subordinate instrument, or by a provision of an Act or subordinate instrument.

(2) For the purposes of clause 1(a), a statement of a statutory offence is sufficient if it -

(a) identifies the provision creating the offence; and

(b) describes the offence in the words of the provision creating it, or in similar words.

10 The learned magistrate accepted that each charge failed to disclose an offence known to the law by reason of the misplacement of the word "not". He said this:

I reject any suggestion that the difference in the text of the statutory provision and that of the current charges is one of semantics. The wording is not of a similar nature and the difference in meaning and effect is significant. In this matter, the prosecution would have an obligation under s 227(1) to prove that the Accused had a duty to not disclose information while the text of the current charges describe offending where the prosecution would only have to prove the absence of a duty to disclose the relevant information. It would be inconceivable to me that someone could read the bare words found in the text of the current charges and conclude that what the charges are describing is offending of the kind contemplated in s 227(1).

Support for this view can also be found in DPP v Zierk [2008] VSC 184; (2008) 184 A Crim R 582. While this authority related to the former version of the relevant Act, it is instructive for the purpose of showing that a duty not to do something is not similar or of a like nature to a situation where one does something which was not his/her duty. At page 590 and at paragraph 37 of that decision, Warren CJ observed: 'As a matter of logic and common sense, there must be situations almost daily where a member is not expressly authorised to release information but is not under a duty of non-disclosure.

Accordingly the charges as currently drafted do not disclose an offence known to the law and they fail to meet the requirements in clause 1(a). The words contained in the current charges simply do not describe the offence sought to be charged under s 227(1). The current charges fail to state the offence that the Accused is alleged to have committed.[3]

11 The learned magistrate, however, rejected the accused's alternative submission that the charges were invalid because the particulars therein failed to provide reasonable information as to the nature of each charge. He said this:

While every case depends on its own specific facts and context, I found that the particulars of the charges in this case were more akin to the situation in Southgate Management Pty Ltd v Nitschke [2018] VSC 236 [("Southgate Management")] than in the case of [Wells v Stillman [2020] VSC 51 ("Wells")]. It is understandable that where such a general term such as 'police information' is used, that it would be near impossible to ascertain what is the duty said to have been contravened. However here, the specific nature of the police information is identified. This is akin to some of those charges that were under consideration in Southgate Management where the food that was the subject of those charges [was] identified as egg mayonnaise or cocktail sauce. The Court in Southgate Management held that the charges were valid despite the charges not providing particulars as to how the relevant food was said to have been handled or how this manner of handling made it unsafe. At paragraph 71 of that judgment, Priest JA held that while the charged company, Southgate would be entitled to request further particulars of such matters, ... 'The fact that further particulars would need to be provided should a request be made does not, however, render the charges invalid.'

Counsel for the Accused submitted that it was not enough to identify the source of the information but that the particulars of the information had to be provided. It was suggested that a valid charge would have provided particulars of the IFS number, the nature of the subject matter of the IFS (eg whether it was a robbery, assault etc) and that the document was marked not to be released to the media.

Given the decision in Southgate Management, I am not of the view that a valid charge in this matter requires that sort of detail. Further, in my view there is nothing in the decision in Wells that also requires that level of detail. As previously stated, I am of the view that the circumstances in this case [are] distinguishable from Wells. Here the specific police information was identified. Further, it would appear to be the case that IFSs are by their nature confidential and not to be released to the media. At the very least, the IFSs which are the subject of these charges were endorsed not to be released to the media. So once the charges identify that the subject police information in this case are IFSs, it should be evident why there was a duty to not disclose them. As IFSs appear to disclose recently reported criminal complaints, it should also be evident that the disclosure of them to the media or other entities may compromise any police investigation, the ability to arrest offenders or the preservation of evidence.

Information as to what the IFS number is or what was the nature of the police incident have no real bearing on helping the Accused to understand what is the offending alleged. It does not appear to be the case that certain police incidents would allow for the IFS to be disclosed while other police incidents would not. By specifying that the subject police information was an IFS and given the nature of what an IFS is, in my view this was reasonable information for an accused to understand the nature of the charge.

If it was the situation that some IFSs are not inherently confidential or that police officers regularly have the ability to disclose some IFSs without the need for prior approval, then the argument of behalf of the Accused would be stronger. However on the material before me, I am not satisfied that the charges as currently particularised are in contravention of the requirement of clause 1(b) of Schedule 1.[4]

12 As regards the power of amendment, the learned magistrate found that the charges could not be amended under s 8 of the CPA, first, because each of the charges did not sufficiently disclose the nature of the offence and, second, because their amendment would amount to the commencement of a proceeding for a new offence. He said this:

Further section 8(4) of the Criminal Procedure Act 2009 provides:

_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.

I have found that the current charges that have been laid against the Accused are invalid. Any amendment granted to the prosecution now to cure that defect would be tantamount to transforming a situation where there does not currently exist any valid charges to a situation where valid charges now exist. Such an amendment would have the effect of charging a new offence or alternatively the amendment would amount to the commencement of a proceeding for a new offence. Further in relation to s 8(4)(a), I have also found that the charge-sheet before the amendment did not sufficiently disclose the nature of the offence.

I also rely on the decision of Ginnane J in Glenister v Magistrates' Court [2014] VSC 265. His Honour at paragraph 163 held:

... The existing charge-sheet, because it did not contain the essential elements of charges 1, 2 and 3 or the particulars that were necessary to give reasonable information as to the nature of the charges, did not sufficiently disclose the nature of the offences.

Then at paragraph 165, his Honour held:

I also consider that the proposed amendments to charges 1, 2 and 3 do amount to the commencement of a proceeding for a new offence in respect of those charges, because the original charges were not valid.

Therefore, I am of the view that there does not exist an ability for the prosecution to now seek to amend the charges as currently drafted.[5]

13 As regards the validity of the original charges, the plaintiff submitted that they must be interpreted as a reasonable accused would understand them. Since s 227 of the VPA proscribes conduct by a narrow class of persons - current or former members of Victoria Police personnel - it was submitted that the reasonable accused should be someone of that class. It was submitted that a reasonable accused from that narrow class would have understood that the charges proscribe what s 227 proscribes, namely, disclosure of police information which it was the duty of the accused not to disclose. The plaintiff submitted:

[T]he class of acts committed in the absence of a positive duty includes within it acts committed in breach of duty. But here the charge as pleaded refers to disclosure of "police incident Fact Sheet (IFS) information"; the charge refers, also, to the notion of "reasonable excuse". Both the subject matter of the alleged disclosure (when read and understood by the relevant class of persons), and the idea that such disclosure took place without "reasonable excuse" makes it, in context, inconceivable to suggest that the relevant reader might understand the gravamen of the alleged wrongdoing to exist in the absence of a positive duty and not a breach of a relevant duty.[6]

14 The plaintiff also submitted that a reasonable accused would have read the charges in the light of s 227 of the VPA, which was mentioned in the charge-sheets.

15 The plaintiff submitted that, for the reasons given by the learned magistrate, the particulars included in the charges supplied reasonable information as to the nature of the charges.

16 As regards the power to amend the charges, the plaintiff submitted that the learned magistrate erred in concluding, in effect, that a "finding of invalidity was commensurate with a failure to satisfy s 8(4)(a) & (b)".[7]

17 Relying on the Legislative Guide for the CPA, the plaintiff submitted that s 8 of the CPA was based on the power to amend previously found in s 50 of the Magistrates' Court Act 1989 (Vic) ("MCA"), which was considered by the Court of Appeal in DPP v Kypri ("Kypri").[8]

18 The plaintiff relied on what the Legislative Guide for the CPA says in relation to s 8(4) of the CPA:

This test avoids the technicalities of section 50 of the Magistrates' Court Act 1989, but is based on principles developed in cases which considered that section. While the words of the section itself are fundamental, some of these cases may assist in determining how the section will be applied.[9]

19 Kypri was the leading case on the scope of the power under s 50 of the MCA to amend an invalid charge after the expiration of the limitation period. The plaintiff submitted that:

Kypri shows that invalidity is not the touchstone for amendment. Kypri makes clear that the amendment power may remain operative after the expiry of the limitation period even when a charge is invalid for failure to plead an essential element.[10]

20 The plaintiff submitted that one would have expected clearer language from Parliament if it had intended to significantly erode the power of amendment as explained in Kypri.

21 As regards a number of authorities relied on by the first defendant, the plaintiff submitted that to the extent that Ginnane J's reasoning in Glenister v Magistrates' Court of Victoria[11] ("Glenister")is at odds with Kypri[12] in relation to the power of amendment after the expiration of a limitation period, Glenister is incorrect.[13] The plaintiff disputed that Ginnane J's interpretation of s 8(4) of the CPA was approved in Baiada Poultry Pty Ltd v Glenister ("Baiada")[14] by Ferguson[15] and McLeish JJA on the appeal from Ginnane J's judgment. The plaintiff also submitted that Zammit J's obiter dicta in Walters v Magistrates' Court of Victoria ("Walters"),[16] endorsing Ginnane J's reasoning in Glenister, was based on a misunderstanding of Kypri.

22 The first defendant agreed that the charges should be interpreted as a reasonable accused would understand them. However he submitted that, as persons other than members or former members of Victoria Police personnel might be charged under s 277 of the VPA pursuant to the law of complicity,[17] the reasonable accused is not someone from a narrow class of persons.

23 The first defendant submitted that a reasonable accused would interpret the words of the charge in accordance with their plain meaning, namely that the accused disclosed the information in the absence of a duty to disclose it rather than in breach of a duty not to disclose it:

The Plaintiff's argument therefore reduces to the contention that a reasonable person would read the words '[t]he accused ... did without reasonable excuse disclose Police Incident Fact Sheet (IFS) information which it was not the duty of the member to disclose', as if the italicised words instead read 'which it was the duty of the member not to disclose'. Reading the words in that way fundamentally alters their meaning. Invoking the 'reasonable defendant' is no justification for a fundamental alteration of the meaning of words. A reasonable person does not treat words which have a clear meaning as if they have some quite different meaning.[18]

24 The first defendant, relying on Alwer v McLean,[19] submitted that in determining the validity of the charges, it was impermissible to have regard to the terms of s 227 of the VPA. In Alwer v McLean[20] a speeding charge was found to be invalid because it failed to refer to an essential element of the offence provision. The relevant traffic regulation was referred to in the charge-sheet but Smith J said this:

While this reference provided information from which the elements could be identified and in that sense protects the accused and informs the court, it seems to me that the law is clear that the information must describe the offence and do so in a way in which the essential ingredients are spelt out. Considering the rationale behind the law, the accused and the court would not be able to identify the essential elements to be proved from the charge and information but would have to obtain the regulations and analyse them to establish all the elements of the offence to be proved. The law's requirements and the rationale underlying it prevent the respondent's above solution being adopted. I note that the strict approach of the law and the justification for that approach were discussed by Kirby J in Walsh v Tattersall [1996] HCA 26; (1996) 88 A Crim R 496 at 521-522, 522-523.[21] While in the circumstances of this case, a less strict approach may not have in fact caused an unfair trial, that is not the test. The law is of general application and must be applied.[22]

25 The first defendant submitted that the learned magistrate was correct to find that the charges were invalid for failing to state an essential element of the offence.

26 Relying on Ginnane J's interpretation of s 8(4) of the CPA in Glenister[23] _ - _ just as the learned magistrate had - the first defendant submitted that if a charge failed to state an essential element of an offence it necessarily followed that it failed to "sufficiently disclose the nature of the offence"(s 8(4)(a)) and could not be amended. Further, amending the charges would amount to the commencement of a proceeding for a new offence, something which is not permitted after the expiration of the limitation period (ss 8(3), 8(4)(b)). The first defendant submitted that in Baiada,[24] on appeal from Glenister, Ferguson and McLeish JJA in their joint judgment impliedly endorsed Ginnane J's approach,[25] albeit in obiter dicta. The first defendant also relied on Walters[26] where Zammit J, also in obiter dicta, approved Ginnane J's approach.[27] It was submitted that Ginnane J's interpretation of s 8(4) was now "settled law" and that I should only depart from that approach if I considered it to be plainly wrong.

27 The first defendant submitted that the plaintiff's reliance on the Legislative Guide to the CPA was misconceived in two respects. First, he submitted that the following passages in the Legislative Guide actually supported his interpretation of s 8(4):

According to Nash, section 50 does not save a charge which fails to specify the essential elements of the offence. However, where the legal elements of the offence are specified, and the only defect lies in a failure to specify essential factual particulars, then the provision operates to save the validity of the charge.

...

While it may be possible to amend a charge which fails to identify the essential elements of the offence within the limitation period, such an amendment after the expiry of the limitation period is likely to amount to an attempt to commence new proceedings. Accordingly, it will not be permissible.[28]

28 The first defendant also submitted that the Guide was not a legitimate interpretive aid:

It constitutes nothing more than a statement, long after the Act was passed, of possible meanings that might be given to the legislative provision in question.[29]

29 The first defendant submitted that if I found the charges to be valid or capable of amendment, I should exercise my discretion to refuse relief on the basis that the particulars of the charges were inadequate. Relying on Wells v Stillman,[30] the first defendant submitted that the police information should have been identified in greater detail. He submitted that the charges should have identified in some detail the particular Fact Information Sheets whose content he allegedly disclosed and the person or persons to whom the information was disclosed. It was submitted that this was reasonable information regarding the nature of the charges and was required by cl 1(b) of Schedule 1 of the CPA.

30 The elements of the offence of unauthorised use of police information are:

• D[31] disclosed police information;[32]

• D was a member or former member of Victoria Police personnel;

• D was under a duty not to disclose the police information; and

• D disclosed the police information without reasonable excuse.

Whether charges failed to aver an essential element

31 Each charge stated that the accused disclosed the police information when he was not under a duty to disclose it, instead of stating, in conformity with s 227 of the VPA, that he was under a duty not to disclose the police information. This amounted to a failure to expressly aver an essential element of the offence. But was that element averred implicitly?

32 If it is alleged that D has broken the law by doing X, it must follow that it is being alleged that D was under a duty not to do X. In my view, the wording of the charges in the present case implies that for members of Victoria Police, such as the first defendant, there is, firstly, a general rule (or duty) of non-disclosure of police information of the relevant type (ie police Incident Fact Sheet information) and secondly, that there are exceptions to the general rule - namely, if the member has a duty to disclose the information[33] or some other reasonable excuse for doing so.

33 In my view a reasonable accused, "striv[ing] conscientiously"[34] to understand the charges, as the law requires, would have understood that it was impliedly alleged that he or she was under a duty not to disclose the relevant police information without reasonable excuse.

34 In reaching that conclusion, I do not call in aid the plaintiff's submission that the reasonable accused in the present case is someone from the narrow class of persons referred to in s 227 of the VPA, namely members or former members of Victoria Police. The first defendant is correct that anybody could be charged with an offence under s 227 of the VPA by reason of the law of complicity and that consequently the reasonable accused is not a member of some narrow class of persons imbued with special knowledge.

35 Nor do I call in aid the fact that the charge-sheet correctly referred to s 227 of the VPA and that, a reasonable accused, reading the charges in the light of s 227, would have immediately realised that the word "not" was misplaced in each of them. Although it seems to me to be sensible to regard s 227 as incorporated in the charge-sheet by reference, and to expect a reasonable accused to have regard to it, I consider myself constrained by authority to ignore the reference to s 227 because I do not consider Smith J's reasons in Alwer v McLean[35] on this point to be plainly wrong.

36 But, having said all that, I think there is much force in the plaintiff's submission that the first defendant's interpretation of the charges "is an example of someone striving conscientiously to fail to understand the information in the charge".[36]

37 Accordingly, I conclude that the learned magistrate erred in finding that the charges were invalid for failing to disclose an offence known to the law.

38 I respectfully agree with the learned magistrate that each charge provided reasonable information as to the nature of the charge, as required by cl 1(b) of Schedule 1 of the CPA. As the learned magistrate explained, the degree of particularisation of charges in the present case is similar to the degree of particularisation of the charges in Southgate Management.[37] Wells[38] is readily distinguishable because in that case - which was also a prosecution under s 227 of the VPA - there was no particularisation of the police information at all.

39 Although it is not necessary for my decision in this case, I will go on to consider whether the charges were capable of amendment if, as the learned magistrate thought, they were invalid.

40 The starting point is of course the words of the relevant statutory provisions.

41 It is instructive to closely compare the wording of the requirements for a valid statutory charge and the wording of the first precondition for amendment under s 8(4) of the CPA. For convenience, I will repeat them in the following table:

A charge must state the offence that the accused is alleged to have committed (cl 1(a)).

The charge-sheet before the amendment sufficiently disclosed the nature of the offence (s 8(4)(a)).

For the purposes of cl 1(a), a statement of a statutory offence is sufficient if it (a) identifies the provision creating the offence; and (b) describes the offence in the words of the provision creating it, or in similar words (cl 3(2)).

A charge must contain the particulars, in accordance with cl 2, that are necessary to give reasonable information as to the nature of the charge (cl 1(b)).

42 "State the offence", which is the first requirement for validity, connotes a greater degree of specificity than "sufficiently disclosed the nature of the offence". This fact alone casts doubt over the contention that a failure to do the former (eg, by failing to aver an essential element of the offence) necessarily amounts to a failure to do the latter.

43 Next, cl 3(2), which describes what is sufficient to "state the offence", begins with the words "For the purposes of clause 1(a)". If the requirements referred to in cl 3(2), which go to the validity of a charge, were also a requirement for s 8(4)(a), the legislature could easily have said so, rather than saying "For the purposes of clause 1(a)".

44 But most importantly, the phrase "sufficiently disclosed the nature of the offence" in s 8(4)(a) must mean something other than "disclosed the nature of the offence" or the word "sufficiently" is given no work to do.

45 Earlier I referred to Alwer v McLean and the prohibition on reading a charge in the light of the statutory provision referred to in the charge-sheet in order to determine whether the charge is valid. Alwer v McLean was not concerned with the power of amendment. Validity is one thing, the power of amendment another.[39] Ignorance of the law is usually no excuse: a fortiori, when an accused's attention is directed to the relevant law in the charge-sheet itself. Given that the first precondition for the power of amendment after the expiration of the limitation period is whether the charge-sheet (not just the charge) sufficiently disclosed the nature of the offence, a relevant consideration in my view is whether the charge-sheet accurately referenced the relevant statutory provision and whether a reading of the terms of that provision would clear up any uncertainty about the nature of the offence alleged in the charge. As I have indicated above, a reading of s 227 indicates immediately that the word "not" was misplaced in the present charges.

46 To date, I have confined myself to the charge-sheet (and information incorporated in the charge-sheet by reference). But whether one thing is "sufficient" can sometimes depend on another thing. Does the "test of sufficiency", so to speak, in s 8(4)(a) permit recourse to other material? Although Kypri was concerned with the previous statutory framework for the amendment of a charge, it is nonetheless instructive.

47 In Kypri, Nettle JA, with whom Ashley and Tate JJA agreed, was clearly of the view that a charge which was invalid because it fails to aver an essential element might still be capable of amendment after the expiration of the limitation period. Nettle JA discussed two scenarios where that power could be exercised. The first scenario was where, despite the charge's defects, the charge and summons still disclosed the nature of the offence (which was not the case in Kypri). The second scenario was where, despite the charge and summons failing to disclose the nature of the offence, other documentation supplied to the accused by the prosecution (such as the police brief or further and better particulars) clarified the nature of the offence prior to the expiration of the limitation period.

48 In relation to these two scenarios, Nettle JA said:

[I]f a charge is defective for failing to aver an essential element of the offence alleged, but contains sufficient information to enable a reasonable defendant to determine the true nature of the offence alleged, it may be amended (even after expiration of the limitation period) in order to accord to what was always understood to be the true nature of the offence alleged. Until such a charge is so amended, however, it remains ineffective. Where, therefore, such a charge is not so amended until after expiration of the limitation period, it will not be until after the expiration of the limitation period that there exists an effective charge. So, therefore, where such an amendment is made after expiration of the limitation period it will defeat the limitation period. The point ... is that such an amendment is regarded as acceptable; for the reason that it is not unfair so to defeat the limitation period where the defendant has been made to understand the true nature of the offence alleged before the limitation period expired.

Logically, the same reasoning applies to a charge which is defective in that it fails to aver an essential element of the offence (and does not otherwise disclose ex facie the true nature of the offence) if, before the expiration of the limitation period, the true nature of the offence alleged is otherwise conveyed in writing to the defendant; for example, by particulars, or letter or even provision of the police brief. In terms of what is just, there is no difference. In each case, the defendant is made to understand, before expiration of the limitation period, the true nature of the offence alleged and, in each case, the amendment does no more than make the charge accord to that understanding.[40]

49 If the first defendant's submissions in the present case were correct, it would mean that s 8(4) does not permit amendment in the second scenario discussed by Nettle JA in Kypri. Such an interpretation of s 8(4) would amount to a major erosion of the power of amendment that had previously existed. It would also be productive of injustice. If an accused, prior to the expiration of the limitation period, is left in no doubt as to the nature of the offence he or she is facing, and the amended charge is not a new charge, and there is no unfairness to the accused, justice requires that the case proceed and be decided on the merits.

50 Had the legislature intended such a major and unmeritorious erosion of the power of amendment, one would have expected clear language to that effect.

51 Instead what we find in s 8(4) are three preconditions for the exercise of the power of amendment which are either open to interpretation consistently with Kypri (s 8(4)(a)) or which manifestly adopt the principles articulated in Kypri (s 8(4)(b) & (c)).

52 In the present case, as mentioned, the charge-sheet described the offending as unlawful disclosure of police information. That description in itself went some way towards disclosing the nature of the offence. The words of each charge referred to all but one of the elements of the offence under s 227 of the VPA. On the assumption that the insertion of the word "not" in the wrong place meant that each charge failed to fully disclose the nature of the offence, even that error, though fundamental, should be kept in perspective; it described a circumstance (not being under a duty to do X) which could be proved by proving the circumstance constituting the final element of the offence (under a duty not to do X).

53 Accordingly, even assuming the invalidity of the charges in the present case, it seems to me that, applying Kypri, if there was evidence which satisfied the learned magistrate that, prior to the expiration of the limitation period, the prosecution made it clear to the accused in writing that it was alleged that he had breached a duty not to disclose the police information, it would have been open to the court to find that s 8(4)(a) of the CPA was satisfied.

54 That brings me to the question of whether I am constrained by authority to conclude otherwise, as the first defendant submitted relying on Glenister,[41] Baiada[42] and Walters.[43]

55 Glenister was a prosecution brought under the Occupational Health & Safety Act 2004 (Vic) following the death of a worker when cleaning a chicken processing chain line at a chicken processing plant run by Baiada Poultry Pty Ltd. The charges were laid two days before the two-year limitation period expired. A magistrate found that all four charges[44] were invalid because they failed to provide reasonable information as to the nature of the charges, contrary to cl 1(b) of Schedule 1 of the CPA, and that the charges would still be invalid if amended as proposed by the prosecution. The magistrate also found that the charges could not be amended under s 8 of the CPA because the original charges did not sufficiently disclose the nature of the offences (s 8(4)(a)) in that, inter alia, they failed to aver essential elements of the offences. The magistrate also found that, given the original charges were invalid, to amend the charges would amount to the commencement of a proceeding for new offences (s 8(3); s 8(4)(b)).

56 Under the heading "The authorities on the validity of a criminal charge", Ginnane J referred with seeming approval to what he described as the "principal authorities", including Kypri. Ginnane J quoted two passages from Nettle JA's reasons in Kypri.[45] The first passage was concerned with the need to interpret a charge as a reasonable accused would interpret it. The second was concerned with amendment out of time. In the latter passage, Nettle JA said this:

The rule is that an amendment which clarifies a charge is permissible and an amendment which goes further than that is not. So, an amendment may be permitted out of time when, despite the amendment, the offence charged stays the same. But an amendment will not be allowed out of time if it would result in the formulation of a new and different charge. The latter is treated as an impermissible attempt to avoid the limitation period.[46]

57 It is important to put this passage in its proper context, namely, Nettle JA's subsequent explanation, referred to above, of how a charge which is invalid for failing to aver an essential element may be amended after the expiration of the limitation period without that amounting to the commencement of a proceeding for a new offence. Ginnane J did not refer to this part of Nettle JA's reasons at all.

58 In Glenister, Ginnane J agreed with the magistrate's conclusions that three of the four original charges were invalid because they failed to aver essential elements of the offence. It is clear from a number of passages in his reasons that Ginnane J equated that failure with a failure of the charge-sheet to sufficiently disclose the nature of the offence. It is also clear that his Honour thought that amending charges which failed to aver essential elements of the offences would amount to the commencement of a proceeding for new offences. Ginnane J said this, relevantly:

[100] Because charge 1 does not contain the essential elements of the offence that I have referred to in the previous paragraphs, I consider that the charge-sheet before the amendment did not sufficiently disclose the nature of the offence and cannot be amended under the power contained in s 8(4)(a) of the CPA.

[101] This finding also affects charges 2 and 3, which for similar reasons fail to 'give reasonable information as to the nature of the charge' and do not sufficiently disclose the nature of the charge.[47]

...

[163] ... I do not consider that, with the exception of charge 4, the charge-sheet before the amendment sufficiently disclosed the nature of the offences, so as to permit an application to be made to amend the charges. The existing charge-sheet, because it did not contain the essential elements of charges 1, 2 and 3 or the particulars that were necessary to give reasonable information as to the nature of the charges, did not sufficiently disclose the nature of the offences.

...

[165] I also consider that the proposed amendments to charges 1, 2 and 3 do amount to the commencement of a proceeding for a new offence in respect of those charges, because the original charges were not valid. Therefore, the second requirement in s 8(4) was also not established in respect of those charges. However, I do not consider that the proposed amendments to charge 4 amounted to the commencement of a proceeding for a new offence. The essential elements of the offence were already contained in the charge.

...

[169] In my opinion, the requirement of s 8(4)(a), of 'sufficiently disclosing the nature of the offence', directs attention to the requirements of clause 1 of Schedule 1 of the CPA, which, in turn, requires a statement of the offence and particulars giving reasonable information as to the nature of the charge. A statement of the offence must contain both of those requirements. If they are both present, the charge-sheet before the amendment sufficiently discloses the nature of the offence.

59 I respectfully disagree with Ginnane J that the failure of a charge to aver an essential element of an offence equates with a failure of a charge-sheet to sufficiently disclose the nature of an offence. I disagree with this restrictive view for several reasons. First, it pays insufficient regard to the textual differences between the requirement for a valid charge and the preconditions for the existence of a power to amend an invalid charge. Second, the restrictive view gives the word 'sufficiently' in s 8(4)(a) no work to do. Third, notwithstanding the absence of clear language in s 8(4) compelling such a restrictive view, it effects a major erosion of the power of amendment that existed under the previous statutory framework as explained in Kypri. Fourth, the restrictive view is not in the interests of justice.

60 The second case relied on by the first defendant is Baiada[48] which was the appeal brought by Baiada Poultry Pty Ltd against Ginnane J's decision that charge 4 was valid. The appeal was unsuccessful. It was concerned solely with the requirements for a valid charge, not the scope of the power of amendment. It sheds no light on whether Ginnane J correctly interpreted the scope of the power of amendment after the expiration of the limitation period. I do not agree that the following obiter dicta in the joint judgment of Ferguson and McLeish JJA supported Ginnane J's exposition of the power of amendment:

Here the question of the validity of the charge is important. The reason for this is because the limitation period for a charge against Baiada under s 26(1) of the Occupational Health and Safety Act 2004 ('OHS Act') has expired. VWA wishes to amend the charge-sheet, principally by adding further particulars. Under s 8(4) of the CP Act, if a charge-sheet sufficiently discloses the nature of the offence, then even though the limitation period has expired, it may be amended provided that the amendment will not cause injustice to the accused and does not amount to commencement of a proceeding for a new offence[49].

61 Ferguson and McLeish JJA did not say in this passage that an amendment of charge 4 would have been impermissible. In my view, they were indicating no more than that the power of amendment after the expiration of the limitation period was subject to a number of preconditions.

62 The third case relied on by the first defendant is Walters.[50] In Walters, Zammit J considered whether a charge under s 49(1)(c) of the Road Safety Act 1986 (Vic) was invalid and if so whether it was capable of amendment after the expiration of the limitation period. Because her Honour ultimately decided that the charge was valid, what she said about the power of amendment was obiter dicta. In that regard, she endorsed what Ginnane J had said in Glenister, declaring that:

The test for amendment laid down by Ginnane J in Glenister should be accepted, to the effect that the only charges that may be amended after expiry of the relevant limitation period are those that were validly drafted in the original form.[51]

63 Zammit J discussed Nettle JA's judgment in Kypri at some length, both in relation to the validity of the charge and the power to amend an invalid charge. Interestingly, she viewed the power to amend in s 50 of the MCA, with which Kypri was concerned, as the equivalent of the power to amend under the CPA:

[84] Ginnane J's conclusions on the operation of s 8(4) of the CPA are further supported by an analysis of s 50(1) of the MCA, which, as shown above, was a legislative precursor to s 8 of the CPA. It stated as follows:

50 Power to amend where there is a defect or error

(1) On the hearing of a proceeding the Court must not allow an objection to a 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 warrant to correct the defect or error.

[85] This section appears to be an amalgamation of the current ss 8 - 9 of the CPA, which is illuminating in that it demonstrates that there is no real difference between the test for validity and the test for amendment, although the threshold for each may vary, depending on whether the limitation period has passed. That is, prior to the expiry of the limitation period, the test in Ciorra would be applied and, if the charge met these requirements, it would be valid and could be amended.

[86] On the other hand, if the limitation period had expired, the test set in Kypri would apply. If the charge-sheet as originally drafted met the requirements laid out in Kypri, then it would be valid and could be amended, but otherwise the charge would be invalid and could not be cured by amendment.(Underlining added)

64 Whilst I agree with Zammit J that the power of amendment under the CPA is equivalent to the former power of amendment under the MCA, I respectfully disagree with Zammit J's analysis of Kypri and the scope of the power of amendment after the expiration of the limitation period.

65 With respect, her judgment does not grapple with the fundamental clash between Nettle JA's exposition in Kypri of the scope of that power and Ginnane J's exposition in Glenister.

66 Relying on Kypri, I consider the notion that "there is no real difference between the test for validity and the test for amendment" to be plainly wrong but that is the gist of both Glenister and Walters.

67 Turning now to s 8(4)(b) of the CPA, it follows from what Nettle JA said in Kypri - which I have quoted above at [48] - that if there was evidence to satisfy the magistrate that the prosecution made the accused aware in writing of the true nature of the offence prior to the expiration of the limitation period, the amendment of the charges by the correct placement of the word "not" would not amount to the commencement of a proceeding for a new offence. In other words, the second precondition for amendment after the expiration of the limitation period (s 8(4)(b)) would be satisfied.

68 It would be necessary of course for the learned magistrate to also consider the third precondition - no injustice to the accused (s 8(4)(c)) - but, unsurprisingly, it has not been suggested in any of the material that that is a real issue.

[2] Charges 1 to 3 were alleged to have been committed at Frankston on 22 January 2018, 28 February 2018 and 13 March 2018 and charge 4 was alleged to have been committed at Mornington on 20 June 2018.

[8] (2011) 33 VR 157; [2011] VSCA 257.

[9] Department of Justice, Criminal Procedure Act 2009: Legislative Guide (February 2010) 45.

[11] [2014] VSC 265, [163], [165].

[12] [2011] VSCA 257; (2011) 33 VR 157, 165-170 [22]-[41]; [2011] VSCA 257.

[14] (2015) 257 IR 204; [2015] VSCA 344.

[16] [2015] VSC 88, [87].

[17] See s 324(1) of the Crimes Act 1958 (Vic).

[18] Court Book, p 116. (Emphasis in original.).

[19] (2000) 116 A Crim R 364; [2000] VSC 396.

[20] There was an additional complication in Alwer v McLean [2000] VSC 396, namely, the charge was laid under the wrong subparagraph of the relevant regulation.

[21] [1996] HCA 26; (1996) 188 CLR 77, 110-111.

[22] Alwer v McLean [2000] VSC 396; (2000) 116 A Crim R 364, 369 [19]; [2000] VSC 396.

[23] [2014] VSC 265, [163], [165].

[24] (2015) 257 IR 204; [2015] VSCA 344.

[25] Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344; (2015) 257 IR 204, 208 [6]; [2015] VSCA 344.

[26] [2015] VSC 88.

[27] [2015] VSC 88, [87].

[28] Department of Justice, Criminal Procedure Act 2009: Legislative Guide (February 2010) 45. (Citations omitted.)

[30] [2020] VSC 51.

[32] In my view an intention to disclose the police information is not an element of the offence. This is because of s 227(2) of the VPA, which says: "Without limiting what may be a reasonable excuse, it is a reasonable excuse if the member or former member took reasonable steps not to access, use or disclose the police information." An accused who took steps not to disclose the police information would not be an accused who intended to disclose the police information. But s 227(2) implies that such an accused could still be guilty if the steps taken did not amount to reasonable steps. Furthermore, there are sound policy reasons for proscribing careless disclosure of police information as well as intentional disclosure. In both situations, investigations of serious offences could be undermined and people placed in danger.

[33] To posit a duty of non-disclosure subject to a positive duty of disclosure is not contradictory. It is simply an example of a general rule allowing for an exception.

[34] Smith v Van Maanen (1991) 14 MVR 365 at 369 (Tadgell J), cited in DPP Reference No 2 of 2001 [2001] VSCA 114; (2001) 4 VR 55 at 68 [40] (Charles JA); [2001] VSCA 114.

[35] (2000) 116 A Crim R 364; [2000] VSC 396.

[37] Southgate Management Pty Ltd v Nitschke [2018] VSC 236.

[38] Wells v Stillman [2020] VSC 51.

[39] It might be argued that the same policy considerations which informed [19] of Smith J's judgment in Alwer v McLean should inform one's interpretation of s 8(4)(a) but the following point should be made. Whilst Nettle JA in Kypri referred with approval to Alwer v McLean, Nettle JA drew a distinction between what material may be considered in determining the validity of a charge and what material may be considered in determining whether the power of amendment may be exercised after the expiration of the limitation period. One should be permitted to consider the terms of a section incorporated by reference in the charge-sheet if, as in Kypri, one is permitted to consider material (eg, the police brief) not referenced in the charge-sheet.

[40] DPP v Kypri [2011] VSCA 257; (2011) 33 VR 157, 169-170 [37]-[38]; [2011] VSCA 257. (Citations omitted.)

[41] [2014] VSC 265.

[42] (2015) 257 IR 204; [2015] VSCA 344.

[43] [2015] VSC 88.

[44] Charge 1 was a charge of failing to provide or maintain, so far as was reasonably practicable, safe plant or systems of work (s 21(2)(a)); charge 2 was a charge of failing to provide appropriate information, instruction or training (s 21(2)(e)); charge 3 was a charge of failing to provide appropriate supervision (s 21(2)(e)); charge 4 was a charge of failing to ensure, so far as was reasonably practicable, that the workplace was safe (s 26(1)).

[45] [2014] VSC 265, [59] & [60].

[46] [2011] VSCA 257; (2011) 33 VR 157, 165 [23]; [2011] VSCA 257. (Citations omitted.)

[47] It is unclear from paragraph [101] whether in Ginnane J's opinion charges 2 and 3 also failed to aver essential elements of the offence but it must be read in the light of [89] where Ginnane J said this: "... In my opinion, without the specification of that information, charges 1, 2 and 3 do not state the essential elements of the offence...." I note that in paragraph [101], Ginnane is more concerned with the nature of the charge (that is, with particulars) than the nature of the offence . He quotes from cl 1(b) of Schedule 1 of the CPA which is about the particulars of a charge. He goes on to use the phrase "do not sufficiently disclose the nature of the charge." It seems to me he was at this point referring to s 8(1)(a) of the CPA and meant to say "do not sufficiently disclose the nature of the offence." If [101] is understood as saying - and this reading seems to me to be open - that a failure to comply with cl 1(b) of Schedule 1 (that is, a failure of particulars) in and of itself equates with a failure to sufficiently disclose the nature of the offence, then in my view, with respect, it is plainly wrong. The precondition for amendment in s 8(4)(a) does not require the original charge to sufficiently disclose the nature of the charge, just the nature of the offence.

[48] (2015) 257 IR 204; [2015] VSCA 344.

[49] [2015] VSCA 344, [6].

[50] [2015] VSC 88.

[51] [2015] VSC 88, [87].