Area of Law – Driving – Drink Driving Offences

An Article about Whether ommissions create a nullity or defective charge

Whether failure to spell out in the charge certain requirements under sections 53 and 55 as they relate to offences under s. 49(1)(f) and s. 49(1)(e) creates a nullity

The wording of offences under section 49(1)(f) and 49(1)(e) came before the Court of Criminal Appeal in the case of DPP Reference No. 2 of 2001; Collicoat v DPP; Bell v Dawson [2001] VSCA 114. The Court heard 3 appeals together, and in each case the issue was whether the ommission of certain matters rendered the charge a nullity, or defective. The defendant in each case argued that the omission of certain content relevant to the charge resulted in a certain element of the charge not being established, or created an ambiguity in the sense that the defendant did now know precisely what case he was required to meet from the prosecution. The important points of each appeal, appear in the summaries below,

Failure to refer to the requirement under s. 53(1) for an offence under s. 49(1)(f)

1. DPP Reference No. 2 of 2001 concerned a reference to the Court of Criminal Appeal pursuant to s. 450A of the Crimes Act on points of law arising from the acquittal of the defendant. The County Court Judge hearing the case on appeal from the Magistrates Court ruled that the wording of s. 49(1)(f) was defective as it omitted a crucial element of the offence, namely the need for a preliminary breath test to be conducted pursuant to s. 53(1), before a requirement for a breath test under section 55(1) could be made. As the wording of the charge made no reference to the requirement under s. 53, the Judge ruled the charge defective and as more than 12 months had passed since the date of the offence, it was not possible for a new charge to be filed against the defendant, accordingly the County Court judge acquitted the defendant of the charge under s. 49(1)(f).

The Court of Criminal Appeal held contrary to the County Court Judge that:”.. the essential elements of the offence under s. 49(1)(f) are prescribed by the section itself and do not be direct or indicrect reference incorporate any other allegation of fact necessary to exist in order to create the offence…” “it follows that while there must be evidence let as to the practical operation of ss 53 and 55 incircumstances of a prosecution under s. 49(1)(f), as a necessary preconditon of proof the 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 rferred to each of the matters capable of identification as an essential elment in a charge under s. 49(1)(f) and was therefore neither defective nor a nullity”.

Failure to particularise the ground under s. 55(1) that the offence under s. 49(1)(e) relates to

2. Bell v Dawson concerned the wording of s. 49(1)(e). The case was first listed in the Magistrates Court, and the argument raised before the Magistrate at the contested hearing was that the charge was defective in the sense that it did not particularise which of the four circumstances outlined under s. 53(1) of the Road Safety Act 1986 applied to the defendant. It was argued that the defendant “would not have known whether it was alleged that the defendant had been found driving, or required to stop at a preliminary breath testing station, or had been the driver of a car involved in an accident, or was sitting in the back seat of a car, before being requried by a member of the polcie force to take the preliminary breath test”.

The second argument raised by the defendant was that although the charge had stated that the defendant had failed to accompany the informant for the purpose of a breath test, it did not particularise the requirement to accompany the police officer and “consequently… did not describe any offence and failed to alelge any offence known to the law.

The Magistrate who heard the case at first instance ruled that the omission to particularise the requirement in the charge was not an essential element of teh offence, and could be fixed with either the supply of particulars or by amendment. The Magistrate permitted the charge to be amended by adding the following phrase “having been required by a member of the police force to accompany a member of the police force or a member to a police station”. The defendant appealled to the Supreme Court on a question of law arising from this hearing, namely whether the Magistrate had erred in allowing the amendment. The Supreme Court Judge held that the charge was not dfeective by reason that through use of the word “refuse” it could be implied that such a requirement had been made.

The Court of Criminal Appeal held that it was not necessary for the charge to specify the precise ground under s. 53 that had been the basis of the requirement to take the preliminary breath test. The court observed that “..although proof of the facts indicating which sub-section of s. 53(1) was the basis of the requirement to take a preliminary breath test was necessary in proof of the offence, this was not an essential ingredient of the charge required to be specified in it. The charge was not, therefore, defective by reason of reason of the failure to include mention of this matter.

The Court also dismissed the argument that failure to particularise the requirement to provide a breath sample, predicating the refusal to accompany was required, agreeding with the conclusion reached by the Judge who heard the s. 92 appeal. The Court observed “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. The offence is therefore sufficiently identified to comply with s. 27 of the Magistrates Court Act, and it follows that the submission that the charge in Bell’s appeal was defective and a nullity should be rejected.”

3. Collicoat v DPP. The issue argued on appeal was identical to one of the arguments raised by Bell, namely failure to particularise what circumstance under s. 53(1) the informant had relied upon as the basis for a preliminary breath test (as per s 49(1)(e) of the RSA 1986). The defendant had argued before a Magistrate that the phrasing of the charge to admit the particular circumstance under s. 53(1) was tantamount to a failing to include an essential element of the offence and was accordingly defective. The Magistrate accepted this submission and dismissed the charge under s. 49(1)(e) on the basis that it did not disclose any offence known to law. The DPP appealed against this decision on a question of law pursuant to s. 92 of the Magistrates Court Act, and the Supreme Court Judge held that “the charge was not defenctive in that the inclusion of the car registration number and licence number in the summons conveyed to a reasonable person charged with an offence under s. 49(1)(e) the requirement to have a preliminary breath test under s. 53 of the Road Safety Act resuled from his being the driver of a motor vehicle, and the charge and summons should be read as a whole, thus enabling the defendant to identify all the encessary ingredients of the offence”. The defendant appealled this decision to the Court of Criminal Appeal.

The Court of Appeal held the charge was not defective and agreed with the conclusion of the Judge who heard the case on the s. 92 appeal: “… it would have been preferable if the charge had included words such as “being the driver of a motro vehicle”, or other words descriptive of the conduct which lied to the preliminary breath test. But this, although a fact necessary to be proved in the prosecution, was not an essential ingredient for the purpose of identifying the offence, and I do not think that the charge was defective or a nullity because of the absence of these words.”


Date: 01/09/2009