Edit: The Court of Appeal have handed down their decision in Kypri. See our discussion of it here.

I was nearly going to title this post Oops!…I did it again but thought better of it.

DPP v Kypri was a DPP appeal against a dismissal of a charge of refusing to accompany for a breath test, contrary to s 49(1)(e) of the Road Safety Act 1986. In this case, the pathway to the alleged offence could have been through any one of several sub-sections in the Act: 55(1), (2), (2AA), (2A) or (9).

The charge didn’t specify which sub-section was relied on, and so the magistrate dismissed the charge because it didn’t contain an essential element of the offence.

The Supreme Court didn’t take long to conclude the magistrate was right, because the same point was decided in Goodey v Clarke (2002) 37 MVR 121; [2002] VSC 246. That case concluded that s 49(1)(e) created separate offences for each sub-section in s 55, and on that point was affirmed by the Court of Appeal in DPP v Greelish (2002) 4 VR 220.

Another nail in the coffin for the prosecution case is the Road Safety (Responsible Driving) Act 2002 s 8. That was enacted after Goodey v Clarke, and provided ‘In section 49(1)(f) of the Road Safety Act 1986, for “55(1) or (2AA)” substitute “55”.’ That meant for 49(1)(f) charges, it didn’t — and still doesn’t — matter if the prosecution doesn’t specify in the charge which limb of s 55 it relies on to make out the offence. Applying the maxim expressio unius est exclusio alterius — express reference to one matter indicates other matters are excluded — it’s arguable that Parliament’s failure to change s 49(1)(e) means the prosecution does need to specify the limb of s 55 for offences contrary to that section.

Just to round off the appeal, Pagone J noted there was no application to amend the charge in the Magistrates’ Court, and said he wouldn’t have allowed an application to amend even if it was a ground of appeal.