Area of Law – Driving – Drink Driving Offences

An Article about Failure to specify correct location for a charge under s. 49(1)(f) does not render the charge defective

In Gigante v Hicks [2001] VSCA 4, the defendant was charged under s. 49(1)(f) of the Road Safety Act 1986. The charge was correct in all material particulars, except for the offence location, it nominated Deer Park, rather than Yarraville. The police prosecutor was granted leave to amend the charge to reflect the correct location. The defendant was convicted and disqualified from driving. He appealled to the County Court and that Court ruled it did not have jurisdiction to decide as a question of law on appeal, whether the Magistrate had correctly allowed the amendment. The issue was then remitted to the Criminal Court of Appeal pursuant to s. 446 of the Crimes Act. The Court of Criminal Appeal held that that unlike other offences, the location of the offence under s. 49(1)(f) is not an essential element. Accordingly, in the words of Justice Batt (with whom Tadgell and Callaway JA agreed) “This is not a case where the original charge was defective in that it failed to allege an offence known to the law or was incomplete, or where it contained a latent ambiguity or duplicity. It merely named a suburb which the evidence to be led would show to be erroneous. Since the suburb was not essential to the offence, the substitution of a different suburb did not amount to charging a different offence. The offence remained the same, though a particular (included in the charge) was altered. Since the offence alleged in the amended charge was accordingly that alleged in the original charge (whose filing commenced the proceeding) and since the latter had been filed no later than 12 months after the date on which “the offence” was alleged to have been committed (31 May 1996), there was no infraction of s.26(4) of the Magistrates’ Court Act[13]. Nor, contrary to the outline of argument for the appellant, had the power of amendment been used to overcome a time limit”.


Date: 01/09/2009