PLAINTIFF QUESTIONS THE DECISION OF THE COURT ALLOWING THE PROSECUTION TO AMEND THE CHARGE SHEET IN A CASE FOR VIOLATION OF THE ROAD RULES
Bant v Grant [2021] VSC 276 (19 May 2021)
This is a case where the plaintiff questions the court’s decision in allowing the prosecution to amend the Charge where there is a misdescribed location of offense and did not state time of day or description of the vehicle.
Facts:
On 21 September 2019, Brandon Bant was charged by Senior Constable Diane Grant with a speeding offense.
Mr Bant contested the validity of the charge, on the basis that it did not provide ‘reasonable information as to the nature of the charge’, as required by S.6(3) and Sch 1, cl 1(b) of the Criminal Procedure Act 2009 (Vic). He claimed that the charge was deficient in three respects:
(a) the place of the alleged offending, ‘Camperdown’, was wrong, because the length of the Princes Highway between Rowans Lane (not Rowans Road) and Jubilee Park Road is in Allansford,not Camperdown;
(b) the factual element of the ‘vehicle’ he was alleged to have driven was not included in the charge; and
(c) the time of the offense had been omitted from the charge. The prosecution accepted that the charge misdescribed the place of the alleged offending. They sought to amend the charge by replacing ‘Camperdown’ with ‘Allansford’ and ‘Rowans Road’ with ‘Rowans Lane’.
Magistrate Hawkins heard argument about the prosecution’s application to amend the charge, and Mr Bant’s objection to its validity. On 19 August 2020, her Honor gave leave to amend the charge in the manner sought by the prosecution, ruled that the charge as amended was valid.
Mr Bant’s position was that the charge-sheet did not sufficiently disclose the nature of the offense because it did not include particulars of the time of day or the vehicle, and gave particulars of a non-existent location. In addition, he submitted that the amendment ordered by the magistrate had the effect of charging a new and separate offense, alleged to have been committed in Allansford rather than Camperdown.
The prosecution submitted that the amendment was permissible, because there was sufficient information in the charge-sheet to disclose the nature of the offense charged, and because the amendment did no more than correct errors in the charge.
The prosecution argued, the suburb and the nearest cross-roads were not elements of the offense of speeding contrary to R.20(1) of the Road Rules. All that had to be alleged was a length of road and the speed limit attaching to the length of road. The charge-sheet sufficiently disclosed the nature of the offense. The time of day, the suburb and nearest cross-roads, and the description of the vehicle were not essential elements of the offense.
Issue: Is the court correct in allowing the prosecution to amend the charge sheet?
Law:
- The charge-sheet could only be amended under S.8(4) of the Criminal Procedure Act if it already sufficiently disclosed the nature of the offense, if the amendment did not amount to charging a new offense, and if it would not cause injustice to the accused.
Analysis:
In order to determine whether the charge-sheet sufficiently disclosed the nature of the offense, and whether the amendment had the effect of charging a new offense, it is first necessary to identify the ‘essential factual ingredients’ of the offense of speeding under r 20(1) of the Road Rules.
The amendment ordered by the magistrate did not have the effect of charging Mr Bant with a new offense. The essential elements of the offense remained the same – that Mr Bant drove a vehicle, other than a heavy vehicle, on the Princes Highway, at a speed that exceeded the speed limit of 100 kilometers per hour, by less than 35 kilometers per hour. The location of the alleged offense and the names of the nearest cross-roads were no more than particulars of the offense, and there was no obstacle to amending them to correct errors after the expiry of the limitation period.
The learned magistrate was entirely correct in her conclusion that the amendment did not create a new offense, and was a mere correction of an error made on the charge-sheet. She was also correct in her conclusion that location is not an essential ingredient of the offense, and was merely included for procedural fairness.
Conclusion: Mr Bant’s challenge to the order amending the charge fails. The amendment was not precluded by sub-ss 8(3) or (4) of the Criminal Procedure Act.
