Magistrate Court's Invalidation of Charge Opposed by Accused

DPP v Lamb [2021] VSC 615 (23 September 2021)

The drafter of four charges mistakenly stated that the accused was “not under a duty to disclose” the information instead of alleging in each charge that the accused was “under a duty not to disclose” relevant information. 

The learned magistrate, however, held that the charge failed to disclose an offence known to the law by reason of the misplacement of the word “not”and that the charges could not be amended outside the limitation period. The Court, in ruling on whether or not the charges are invalid, relied on relevant jurisprudence as well as the Criminal Procedure Act 2009 (Vic).

Facts:

The drafter of four charges of unauthorised disclosure of police information put the word “not” in the wrong place.  Instead of alleging in each charge that the accused was “under a duty not to disclose” the relevant information, the charge stated that the accused was “not under a duty to disclose” the information.  Each of the four charges stated that "the Accused on ... at ... being a member of Victoria Police did without reasonable excuse disclose police Incident Fact Sheet (IFS) information which it was not the duty of the member to disclose."  Each charge-sheet stated that the charges were brought under s 227 of the VPA. 

Under the relevant charge and adjacent to a heading that read “Offence Literal”, there appeared the words “Unlawful disclosure of police information”.  The learned magistrate accepted that each charge failed to disclose an offence known to the law by reason of the misplacement of the word “not”.  It was further found that the charges could not be amended outside the limitation period.  It was held that the wording is not of a similar nature and the difference in meaning and effect is significant.

Thus, it was held that the prosecution would have an obligation under s 227(1) to prove that the Accused had a duty to not disclose information while the text of the current charges describe offending where the prosecution would only have to prove the absence of a duty to disclose the relevant information.  The plaintiff, on the other hand, submitted that the charges must be interpreted as a reasonable accused would understand them.

Issues:

I. Whether or not the charges of unauthorised disclosure of police information are invalid.

II. Whether or not the charges are capable of amendment after the expiration of the limitation period.

Applicable law:

Victoria Police Act 2013(Vic) (‘’VPA”) s 7 - enumerates who constitutes Victoria Police. 

Victoria Police Act 2013 (Vic) (‘’VPA”) s 225 - provides that police information means:

(a) in relation to a member or former member of Victoria Police personnel, any information that has come to the knowledge or into the possession of the member;

(i) in the performance of functions or duties or the exercise of powers as a member of Victoria Police personnel; or

(ii) otherwise as a result of being a member of Victoria Police personnel.

Victoria Police Act 2013 (Vic) (‘’VPA”) s 227 - provides that a member or former member of Victoria Police personnel must not, without reasonable excuse, access, use or disclose any police information if it is the duty of the member or former member not to access, make use of or disclose the information.

Criminal Procedure Act 2009 (Vic) (“CPA”) s 8(4)  - provides that if a limitation period applies to the offence charged in the charge-sheet, the charge-sheet may be amended after the expiry of the limitation period if:

(a) the charge-sheet before the amendment sufficiently disclosed the nature of the offence; and

(b) the amendment does not amount to the commencement of a proceeding for a new offence; and

(c) the amendment will not cause injustice to the accused.

DPP v Zierk [2008] VSC 184; (2008) 184 A Crim R 582 - instructive for the purpose of showing that a duty not to do something is not similar or of a like nature to a situation where one does something which was not his/her duty.

Alwer v McLean [2000] VSC 396; (2000) 116 A Crim R 364 - where a speeding charge was found to be invalid because it failed to refer to an essential element of the offence provision. 

Glenister v Magistrates’ Court of Victoria [2014] VSC 265 - where Ginnane J held that the existing charge-sheet, because it did not contain the essential elements of charges 1, 2 and 3 or the particulars that were necessary to give reasonable information as to the nature of the charges, did not sufficiently disclose the nature of the offences.

Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344; (2015) 257 IR 204 - where the first defendant submitted that on appeal from Glenister, Ferguson and McLeish JJA in their joint judgment impliedly endorsed Ginnane J’s approach, albeit in obiter dicta. 

DPP v Kypri [2011] VSCA 257; (2011) 33 VR 157 - court considered that s 8 of the CPA was based on the power to amend previously found in s 50 of the Magistrates’ Court Act 1989(Vic)(“MCA”).

Smith v Van Maanen (1991) 14 MVR 365 - held that a reasonable accused, “striv[ing] conscientiously” to understand the charges, as the law requires, would have understood that it was impliedly alleged that he or she was under a duty not to disclose the relevant police information without reasonable excuse.

Walters v Magistrates’ Court of Victoria [2015] VSC 88 - Zammit J considered whether a charge under s 49(1)(c) of the Road Safety Act 1986(Vic) was invalid and if so whether it was capable of amendment after the expiration of the limitation period.

Wells v Stillman [2020] VSC 51 - the first defendant relied upon this case submitting that the police information should have been identified in greater detail. 

Analysis:

The counsel for the Accused submitted that it was not enough to identify the source of the information but that the particulars of the information had to be provided.  It was suggested that a valid charge would have provided particulars of the IFS number, the nature of the subject matter of the IFS (e.g. whether it was a robbery, assault etc) and that the document was marked not to be released to the media.  The learned magistrate rejected this contention and argued that information as to what the IFS number is or what was the nature of the police incident have no real bearing on helping the Accused to understand what is the offending alleged.

The learned magistrate found that the charges could not be amended under s 8 of the CPA, first, because each of the charges did not sufficiently disclose the nature of the offence and, second, because their amendment would amount to the commencement of a proceeding for a new offence. The plaintiff asserted that Kypri makes clear that the amendment power may remain operative after the expiry of the limitation period even when a charge is invalid for failure to plead an essential element.

Conclusion:

The Court ordered to quash the learned magistrate’s order striking out the charges and remit the charges to the Magistrates’ Court of Victoria for hearing and determination according to law.  The Court concluded that the learned magistrate erred in ruling that the charges did not disclose an offence known to the law and were invalid.  The particulars of the charges were sufficient.  If the charges were invalid, the Court found they were capable of amendment.  The prosecution, on the remitter, will seek an amendment of the charges to put the word “not” in the right place.