Sheerin v DPP [2021] VSCA 48

1 This appeal concerns the validity of a charge brought under s 49(1)(eb) of the Road Safety Act 1986 ('the Act').

2 The Magistrates' Court dismissed the charge by reason that it was invalid. However, a trial judge of the Supreme Court found that the charge was not invalid, and thereby allowed an appeal, ordering that the charge be remitted to the Magistrates' Court for determination.

3 The key issue concerns whether the charge was invalid on the basis that, although it alleged that the accused 'did refuse to remain' prior to provision of a sample of oral fluid for testing, it did not properly specify the allegation that a 'requirement to remain' had been given under s 55E of the Act.

4 For reasons expressed below, the proposed grounds are without substance and leave to appeal will be refused.

5 Senior Constables Clinton Goff and Will Watson intercepted the applicant while driving his white Hilux utility at Inverloch, Victoria one Sunday in February 2018. After the police obtained the applicant's details, they asked him to undergo a preliminary breath test. It was negative. The police then asked him to undertake a preliminary oral fluid test pursuant to s 55D of the Act.

6 According to the prosecution case, having administered that test, and reading from a card with pro forma text, Senior Constable Goff said to the applicant:

In my opinion the results of the oral fluid test indicated that oral fluid contains a prescribed illicit drug. I now require you to accompany me to the testing vehicle for the purpose of an oral fluid test and to remain there until you've undergone the test and received a sample of the fluid, or for a period of three hours from the time of driving or being in charge, whichever is sooner.

7 The police officer also informed the applicant that if he refused to accompany him to the police vehicle to take the oral fluid test he may be charged with an offence and penalised if found guilty.

8 The applicant accompanied the police officers to the police vehicle where the oral fluid test was to be performed. Whilst at the police vehicle the applicant became agitated, pacing back and forwards, and complained to the police that they were holding him up. Senior Constable Goff told him that he was not under arrest and could leave if he wanted to, but asked him to remember the consequences that he had previously read to him.

9 At that point the applicant left without waiting for the test to be taken and before three hours had elapsed since driving his vehicle.

10 The applicant was subsequently charged as follows:

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 section 55E(2)(a) of the road safety act 1986 and for the purpose he accompanied a police officer to a testing vehicle did refuse to remain at the location prior to providing the sample in accordance with section 55E.

11 The charge sheet noted that the State law under which the charge was brought was s 49(1)(eb) of the Act. Next to 'Offence Literal' the following also appeared: 'Refuse to remain for Oral Fluid Sample'.

12 At the hearing in the Magistrates' Court, Senior Constables Goff and Watson both gave evidence and were cross-examined. At the conclusion of the prosecution case, the applicant's counsel submitted that the case must fail because the charge was lacking an essential element given it did not allege that the applicant was 'required to remain.' The magistrate appeared to accept this submission, and dismissed the charge on 14 March 2019.

13 On 24 June 2020 the trial judge allowed an appeal on a question of law under s 272(1) of the Criminal Procedure Act 2009, and remitted the charge to be reheard in the Magistrates' Court.

14 On 22 July 2020 the applicant filed an application for leave to appeal in respect of the trial judge's decision which contained the following proposed grounds:

1. The learned trial judge erred by holding that a requirement to remain was implied by the charge filed by the Respondent in the Magistrates' Court and the charge was therefore not ambiguous.
2. The learned trial judge erred in finding the charge was not a nullity when it did not expressly identify the requirement alleged to have been made of the Applicant by the Respondent.
3. The learned trial judge's decisions did not consider relevant authority dealing with the need under the Criminal Procedure Act 2009 for adequate particulars in a charge and so were per incuriam.

15 The conduct with which the applicant was charged is made unlawful by s 49(1)(eb) of the Act. It states that a person is guilty of an offence if he or she -

(eb) refuses to provide a sample of oral fluid in accordance with section 55D or 55E when required under that section to do so or refuses to comply with any other requirement made under that section.

16 Section 55D authorises a police officer to require a person to undergo a preliminary oral fluid test in certain circumstances, as occurred in this particular case.

17 Section 55E then deals with the requirement to undergo a further oral fluid test, and relevantly provides:

(2) 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.[2]

18 After setting out the relevant background the trial judge observed that ss 55E(2)(a) and 55E(2)(b) set out the conditions which trigger the 'operative provision.' He further defined the 'operative provision' as coming immediately after sub-s (2)(b) commencing with the words 'any police officer or' and ending with the word 'until.' Subsections (2)(c) and (2)(d) then define the events that conclude the obligations created by the operative provision.[3]

19 The trial judge observed that the operative provision authorised the police officer to make three requirements of a person if the conditions in sub-ss (2)(a) or (2)(b) were met, namely:

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

(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 [sub-ss (2)(c) or (2)(d)] elapses.[4]

21 His Honour then dealt with what he considered to be the two main complaints, being, first, that the charge was ambiguous, and secondly, that it did not 'explicitly allege' that the applicant had been 'required to remain' at the test vehicle for the relevant time period.

22 In terms of ambiguity, his Honour observed that, because of the explicit reference to s 55E(2)(a), the charge identified that the condition relied on for making the requirement under s 55E in this case was the police officer's opinion that a preliminary test administered under s 55D had returned a positive result.[5]

23 His Honour also went on to find that only one refusal was alleged, namely, the refusal to remain, and stated:

[The applicant] argued that the charge was defective and did not appraise him of the nature of the offence charged because it did not tell him unambiguously the requirement he is said to have contravened. Because it is clear that it was his refusal to remain that was the basis of the charge, by necessary implication the only relevant requirement that could be in issue was a requirement to remain until the sample was provided or the 3 hours elapsed.[6]

24 His Honour considered that counsel's submission had created an illusion of ambiguity by depicting the features of one charge - the requirement, its purpose and the period for which it operated - as if they might each have been the subject of a separate offence, and rejected the submission that there was any doubt, confusion or ambiguity.[7]

25 In respect of the question of whether there was a defect because the charge did not explicitly allege a requirement to remain, his Honour considered that the submission was answered by the conclusions reached by the Court of Appeal in Director of Public Prosecutions Reference No 2 of 2001; Collicoat v Director of Public Prosecutions; Bell v Dawson ('Bell').[8] The Court in Bell found that a charge alleging that a person had 'refused to accompany' necessarily carried with it the allegation that the person had refused a requirement to accompany. Further, the Court found that the charge was not a nullity for lacking any explicit reference to a requirement to accompany.[9]

26 His Honour also rejected the suggestion that the defect was not capable of being cured by amendment, citing both Bell and Director of Public Prosecutions v Greelish.[10] However, he also observed that whether an amendment should be granted upon remitter would depend on there being an application to amend and, if so, the exercise of the magistrate's discretion in the circumstances. If sought, such an amendment could be as simple as adding the words 'a requirement' after 'refuse' in the charge.[11]

27 In any event, his Honour found that it was sufficient to state that the charge as framed was not invalid or defective for lacking any express reference to a requirement having been made. Rather, as in Bell, a reasonable defendant reading the charge should be perfectly capable of reaching a correct conclusion as to the nature of the subject matter of the charge and its essential ingredients.[12]

28 Before analysis of the grounds it is important to further examine the decision of this Court in Bell, as well as in the later decision of Director of Public Prosecutions v Kypri ('Kypri').[13]

29 As highlighted by the trial judge, in Bell, Charles JA (Winneke P and Chernov JA agreeing) endorsed the lower Court's conclusion that a charge alleging that a person had refused to accompany a police officer to a testing station (for a breath test under s 55(1) of the Act) necessarily carried with it the allegation that the person had refused a requirement to accompany the police officer.

30 Charles JA accepted that the making of a requirement to accompany was an essential ingredient of the charge.[14] However, his Honour noted that the trial judge's finding as to the effect of the verb 'refuse' was that it necessarily implied an allegation of a requirement or request to accompany.[15] He considered that the use of the verb 'refuse' conveyed sufficiently to the defendant that his alleged refusal must have followed some requirement or request to accompany.[16]

31 His Honour further extracted and endorsed the trial judge's reasoning as follows:

Given what I have found to be the effect of the verb 'refuse', I find that by the use of that word, as required by s 49(1)(e), the charge 'sets forth the acts which are relied upon as constituting the offence' (Latham CJ in Johnson v Miller); apprises the defendant of 'the particular act, matter or thing alleged as the foundation of the charge' (Dixon J in Johnson v Miller); tells the accused 'what law, statutory or other, he is alleged to have broken; and ... with reasonable particularity how he is alleged to have broken that law' (Salter J in Pointon v Cox); and, finally, 'describes the offence' as required by s 27 of the Magistrates' Court Act.[17]

32 His Honour considered 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,'[18] and found that a reasonable 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.'[19]

33 His Honour also considered that it would have been 'preferable' if the charge had made express reference to the requirement to accompany and found that an amendment on this basis was a correct exercise of the magistrate's discretion.[20]

34 In Kypri, the defendant was charged with an offence under s 49(1)(e) of the Act. The charge alleged that he had refused to comply with a requirement to accompany made of him 'pursuant to section 55' of that Act. The charge failed to identify the particular subsection of s 55 under which the requirement to accompany was made. More particularly, it failed to identify whether the requirement was made under s 55(1) or s 55(2).[21]

35 The Court held that the charge was defective in failing to identify the act which comprised the offence ie the particular kind of requirement under s 55 with which it was alleged that there was non-compliance.[22] However, the Court found that it was appropriate to remit the matter back to the Magistrates' Court to reconsider whether the charge should be amended.

36 As is apparent from the summaries of these cases, the two decisions were concerned with different issues. While Kypri was concerned with the need to identify a requirement (by reference to the specific statutory provision), Bell was concerned with the different question as to whether a requirement may be identified by implication.

Alleged error in finding that a requirement to remain was implied and the charge was therefore not ambiguous (proposed ground 1)

37 The applicant submitted that the trial judge had mischaracterised his submissions below which were that the charge did not identify the particular requirement under s 55E that he was alleged to have refused, which requirement was an essential element.

38 It was suggested that the current case contrasted with Bell because this charge referred only to a requirement which 'in fact' was never made of him. The context of the charge also did not reveal the requirement he was accused of contravening.

39 The applicant also placed reliance on Kypri. In oral submission counsel initially suggested that Kypri implicitly overruled Bell. He also submitted that the reasoning in Kypri was applicable such that a valid charge not only required identification of the relevant subsection, but also the character of the requirement.

• that the reasoning in Bell would be capable of applying to the word 'refusal' in this case such that the word 'refusal' does convey that a requirement had been made;
• that he was not really saying that Kypri overruled the finding in Bell that the specific requirement can be sufficiently identified by implication (although he later invited the Court to take the opportunity itself to insist upon an express articulation of each essential element of a charge, including by insisting that any requirement be made express).

41 Instead, counsel's submission was that the implication was not sufficient in this case to identify the requirement in question. In particular, he suggested that the charge did not identify which of the particular requirements were alleged to have been made of the applicant by reference to sub-ss (2)(c) or (2)(d). Thus, he suggested that there might be a requirement to provide a sample under para (c), or there could be a requirement to remain until three hours have elapsed under para (d). In reply he also cited Director of Public Prosecutions v Piscopo ('Piscopo')[23] for the proposition that the three-hour time limit was an essential element of the charge.

42 The respondent highlighted that the complaint in the Court below and on this application was that the charge did not specify which of the relevant three requirements (as found by the trial judge) had been made of the applicant. The respondent submitted that the learned trial judge noted that the identification of s 55E(2)(a) as the source of the requirement meant that the charge made clear that the requirement in issue arose because, in the police officer's opinion, the preliminary test administered to the applicant had returned a positive result. The wording of the charge itself also made explicit that the applicant accompanied the police officer to the testing vehicle. The charge then alleged in terms that the applicant refused to remain at the relevant location. The meaning of the charge was perfectly clear to a reasonable defendant. Further, a consideration of the transcript made plain that the meaning of the charge was clear to counsel appearing on the applicant's behalf in the Magistrates' Court.

43 In oral submission senior counsel highlighted that paras (c) and (d) were not requirements. Rather, the relevant 'requirement' was the obligation to remain, with paras (c) and (d) marking the points at which the obligation to remain may end. Thus, para (c) did not provide for an offence of failing to provide a sample, while para (d) was an 'expiration point,' and did not create an obligation, in itself, to remain for three hours. She accepted that if reliance was to be placed on that limb of para (c) which involved a failure to comply with any requirement under s 59 it would be necessary to identify the specific requirement, but there was no such positive obligation in this case and thus it was not necessary for the charge to refer to sections or paragraphs that were not alleged to be breached.

44 Turning to the charge itself, the respondent submitted that it made clear that no 'triggering event' had terminated the requirement to remain. It was also not necessary to specify the various options under paras (c) and (d) because the applicant did not remain long enough for anyone to know in which way it would have ended. The words 'prior to providing the sample' were therefore surplus words in the charge although those words clearly confirmed that the rest of para (c) was inapplicable.

45 An issue arose at the hearing as to whether the reference in the charge to 'within 3 hours of being the driver' was specified as an element of the charge in indicating the time period during which the 'sample of oral fluid' was to be provided, consistently with s 55E(2)(d). However, the respondent submitted that the reference to the three-hour time frame specified in the charge was not a reference to the duration under s 55E(2)(d), but, rather, a reference to the relevant three-hour time limit that governs the power to oblige a person to undergo a preliminary oral fluid test pursuant to s 55D.

46 However, s 55D is concerned with the provision of a preliminary oral fluid test.[24] The respondent's submission is inconsistent with the subject of the charge not relating to the provision of a preliminary oral fluid test (which the applicant duly provided)[25] but rather with providing a 'sample of oral fluid for testing pursuant to s 55E(2)(a)' within the three-hour time limit, namely, 'within 3 hours of being the driver'. Section 55E(2)(a) is only triggered when the preliminary oral fluid test indicates, in the opinion of the police officer, that 'the person's oral fluid' contains a prescribed illicit drug. It assumes that (as here) the preliminary oral test has been administered. We say more about the reference in the charge to the three-hour time limit below.

47 By way of preliminary observation, the grounds as alleged are not concerned with whether a requirement to remain was in fact made but, rather, whether the charge itself was defective in not alleging that requirement.

48 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.'[26] 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'.

49 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.

50 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 Bell. 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. Bell remains good law and nothing said on behalf of the applicant suggested otherwise. The principles enunciated therein have stood as sound for many years.

51 It follows that no error was made by the trial judge in holding that a requirement to remain was implied in this case. Nevertheless, the applicant's argument as developed in oral submission went further and suggested that the relevant requirement was insufficiently identified insofar as paras (c) and (d) were concerned.

52 We disagree. In our view the charge made it clear that the applicant was alleged to have committed the offence of refusing to remain 'prior to providing the sample in accordance with s 55E.' A reasonable defendant would thereby readily understand that what was alleged was failing to remain without providing a sample of oral fluid for testing, as specified in the first line of para (c). We do not consider that the words 'prior to providing the sample' were surplus to the charge; those words served to identify that the relevant offence alleged was a failure to remain to provide a sample as specified in s 55E(2)(c). They reflect the purpose for which the requirement to remain was made by Senior Constable Goff, as specified in the charge, namely, for the purpose of 'provid[ing] a sample of oral fluid for testing pursuant to section 55E(2)(a)'.

53 We also consider that the earlier reference in the charge to 'within 3 hours of being the driver of a motor vehicle' served to identify that the time specified under s 55E(2)(d), the expiry of which would bring the applicant's obligation to an end, had not (yet) expired. In other words, the reference to the three-hour time limit simply emphasised that the requirement imposed upon the applicant to remain at the location for the purpose of providing a sample of oral fluid for testing was a subsisting requirement. At the time of his alleged 'refusal to remain', the applicant's obligation to comply with the requirement remained on foot. We do not consider that the reference to the three-hour time limit introduced ambiguity.

54 We consider that the analysis of the charge that the trial judge adopted was correct, namely, that the reasonable interpretation of the charge is that 'Mr Sheerin was charged with the refusal of a requirement to remain at the testing vehicle in order to provide a sample within 3 hours of driving'.[27] We view the final qualifying words as doing no more than stating that the requirement had not (yet) terminated.

55 Even without a reference in the charge to the three-hour time limit, an allegation of a 'refusal to remain' would necessarily convey to a reasonable defendant that the requirement to remain was ongoing at the time of the alleged refusal. Just as Bell holds that the allegation of a 'refusal' necessarily implies the prior making of the relevant requirement, so too must the allegation necessarily imply that the requirement remained in force. Otherwise an allegation of refusal would be meaningless.

Alleged failure by reason of not expressly identifying a requirement (proposed ground 2)

57 As the applicant's counsel correctly conceded, there is no basis for contending that Kypri overruled Bell.

58 Bell clearly stands for the proposition that a necessary element (a requirement 'to accompany' in that case, or 'to remain' in this one) may be alleged by implication.

59 It follows that proposed ground 2 is without merit.

Alleged failure to consider relevant authority relating to adequate particulars in a charge (proposed ground 3)

60 The applicant claimed that the charge did not contain sufficient particulars such as are necessary 'to give reasonable information as to the nature of the charge' by reason of the absence of the requirement to remain.[28] He also submitted that the trial judge wrongly failed to refer to Wells v Stillman ('Wells')[29] in his reasons despite the applicant's reference to it in oral submission.

61 The respondent reiterated that the charge sufficiently alleged the requirement to remain. She also submitted that the ground as formulated was not tenable as it was incorrect to assert that a judge of the Supreme Court has committed an error which vitiates his/her decision merely by failure to mention a judgment of another judge of the Supreme Court. In any event, there was no inconsistency between the decision in Wells and the decision the subject of this application given Wells turned on its own facts.

62 Both counsel also made various submissions about whether an amendment would be appropriate, with the applicant suggesting that there could not be an amendment given that the material provided in the police brief was unclear as to what requirement was in fact made.

63 Counsel for the applicant accepted that he was effectively making the same argument under a different statutory provision. He also conceded that the issue of amendment would not arise if the charge was not defective.

64 We accept these concessions which were appropriate. Moreover, a requirement to remain was not a matter for particulars, and instead constituted an element of the offence, consistent with Bell. For reasons given already, that element was adequately identified in the charge.

65 We accept the prosecution's submission that a failure to refer to another decision of a single judge (in Wells) will not of itself give rise to an error of law. A mere 'failure to refer' of that kind could never constitute error for the purposes of an appeal by way of rehearing, as this is. What must be shown is that the decision was affected by error. If it was, the failure to refer to some relevant decision may explain the error but the error must first be established by conventional means.

66 Finally, although the charge may have been better expressed, we do not consider that it needs amendment. Ultimately, however, that will be a matter for the magistrate if such an application were to be made.

[1] Insofar as the background recites factual matters, they are based on the reasons of the trial judge: DPP v Sheerin [2020] VSC 371, [1]-[5] (Macaulay J) ('Reasons').

[4] Ibid [13] (citations omitted) (emphasis in original).

[8] (2001) 4 VR 55; [2001] VSCA 114 ('Bell').

[10] (2002) 4 VR 220; [2002] VSCA 49 ('Greelish').

[13] (2011) 33 VR 157; [2011] VSCA 257 ('Kypri').

[14] Bell [2001] VSCA 114; (2001) 4 VR 55, 67 [34]; [2001] VSCA 114.

[17] Ibid 68 [38]‑‑‑‑‑‑‑‑-[39] (citations omitted).

[21] Kypri [2011] VSCA 257; (2011) 33 VR 157, 165-6 [25] (Nettle JA), 178-9 [77] (Tate JA); [2011] VSCA 257.

[22] Ibid 162 [11]-[12], 163 [16] (Nettle JA), 173 [52] (Ashley JA), 178 [76] (Tate JA).

[23] (2011) 33 VR 182; [2011] VSCA 275 ('Piscopo').

[24] See Road Safety Act 1986 s 55D(1). See also s 55D(8) which provides that a 'person is not obliged to undergo a preliminary oral fluid test if more than 3 hours have passed since the person last drove, was an occupant of or was in charge of a motor vehicle'.

[25] See [5]-[6] above.

[26] Consistent with Piscopo [2011] VSCA 275; (2011) 33 VR 182, 189 [32] (Ashley JA); [2011] VSCA 275.

[27] Reasons [29] (emphasis in original).

[28] Criminal Procedure Act 2009 s 6(3)(c), sch 1 cl 1.

[29] [2020] VSC 51 ('Wells').