DRIVER QUESTIONS THE VALIDITY OF THE SPEEDING TICKET WHICH DID NOT STATE THE TIME OF THE DAY AND EXACT PLACE OF THE OFFENSE
Director of Public Prosecutions v Fox [2021] VSC 226 (5 May 2021)
This is an appeal on the question as to whether the speeding charge was invalid if the charge stated the date but did not state the time of day of the alleged offense and misstated the place of the offense.
Facts:
Matthew Fox, the Respondent, was driving on the Princes Freeway in Nar Nar Goon when he was intercepted by police and issued with a traffic infringement notice for speeding (alleged speed 135kph).
He questioned whether the speeding charge was invalid since the Charge stated the date but did not state the time of day of the alleged offense and misstated the place.
The Respondent submitted that the Criminal Procedure Act 2009 has changed the law in relation to the particulars required for a valid charge.
As to time, he submitted that merely particularizing the date of an alleged speeding offence is now inadequate: the particulars must include the time of day. He submitted that this is ‘reasonable information’ having regard to modern means for detecting traffic offences, such as speed cameras and the like. The inclusion of the time of day will enable or assist the motorist to work out whether he was in fact driving the car at the relevant time.
As to place, the Respondent submitted that the alleged place of the offending did not exist, as there is no Interchange Road in Nar Nar Goon. The description in the charge of the place of the alleged offending contravened not only cl 1(b) of the First Schedule but also cl.7 which demands ‘reasonable clarity’.
As to the time, the Appellant submitted it was sufficient for the charge to particularise the date, as is the case with most charges. The Appellant relied on S.9(2) which provides that, unless time is an essential element of the offense, a charge is not invalid by reason only of the charge omitting to state the time of an alleged offence. The Appellant submitted that time was not an essential element of the offense.
As to the place, the Appellant submitted it was sufficient for the charge to particularise the road (Princes Freeway) and the locality (Nar Nar Goon) where the alleged speeding occurred. The inclusion in the charge of ‘between Interchange Road and Snell Road’ was surplusage.
Issue: Was the charge against the respondent valid?
Law:
- Criminal Procedure Act 2009 (Vic), ss 6, 7, 8, 9, sch 1, cls 1, 2, 3, 7
- Foster v Harris [2012] VSC 637
Analysis:
The Respondent submitted that the law in relation to the particulars that must be included in a charge has been changed by the Criminal Procedure Act 2009(Vic) to require more detail. The court does not accept that submission.
Whilst there may have been a change in form, there has been no change in substance. As to form, the relevant provisions of the Criminal Procedure Act 2009(Vic) now stipulate what must be contained in a charge. As to substance, the common law elucidates the meaning of the particulars necessary to give ‘reasonable information as to the nature of the charge’
As to time, Foster v Harris considered the particulars required for a valid speeding charge in circumstances where the Criminal Procedure Act 2009 (Vic) applied and where the applicable speed limit (40kph) depended on the driving having occurred on a school day during drop off and pick up times. Williams J ruled that it was not necessary for the charge to particularise the time of day of the driving. If it was not necessary to particularise the time of day in such circumstances, a fortiori in the present case
As to place, the relevant driving was particularised by reference to the road (the Princes Freeway) and the locality (Nar Nar Goon). That in my view was sufficient. The additional details supplied in the charge (between Interchange Road and Snell Road) were surplusage, although they might have been the proper subject of an application for further and better particulars. In my view, the capitalization of the words ‘Interchange Road’ was a minor error that did not invalidate the charge and ought to have been amended under S.8.
Conclusion: The court orders that the decision of the Magistrate dismissing the charge be quashed and that the matter be remitted to the Magistrates’ Court to be determined in accordance with the law.
