The decision of DPP v Kypri [2011] VSCA 257 was handed down this morning.

We discussed the case here, here and here. For those unfamiliar with it, the argument (successful at the original hearing, again on appeal to the Supreme Court, but not on this most recent appeal to the Court of Appeal) was that a failure to specify the sub-section of s 55 of the Road Safety Act 1986 is fatal to some types of drink-driving charges and incapable of amendment.

The Court of Appeal did find that a charge failing to name a sub-section is ineffective, as Pagone J had earlier.

Nettle JA [beginning in 16]:

A charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context: <a href="http://www.austlii.edu.au/au/cases/vic/VSCADPP Reference (No 2 of 2001)(2001) 4 VR 55. If, therefore, the contents of the charge and the summons are sufficient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, the charge will not be invalid. Failure to name the sub-section would be a breach of s 27 of the Magistrates’ Court Act 1989: McMahon v DPP (Unreported, Supreme Court of Victoria, Court of Appeal, Brooking, Charles and Callaway JJA, 10 June 1995) 4. But that would be the sort of breach which could be rectified by amendment. It would not affect the essential validity of the charge or, necessarily, the validity of any conviction obtained on it. Where, however, as here, the charge and summons do not allege sufficient facts to enable a reasonable defendant to determine ex facie the sub-section of s 55 under which the requirement is alleged to have been uttered, the charge is defective because it fails to convey the nature of the offence alleged.

But this will offer no comfort to the respondent in this case, or the thousand or so other accused who have been waiting on its outcome, because the court also decided that such defects are capable of amendment, even outside the 12-month limitation that typically prevents the amendment of an invalid summary charge.

Nettle JA [at 37]:

As McMahon shows, if a charge is defective for failing to aver an essential element of the offence alleged, but contains sufficient information to enable a reasonable defendant to determine the true nature of the offence alleged, it may be amended (even after expiration of the limitation period) in order to accord to what was always understood to be the true nature of the offence alleged. Until such a charge is so amended, however, it remains ineffective. Where, therefore, such a charge is not so amended until after expiration of the limitation period, it will not be until after the expiration of the limitation period that there exists an effective charge. So, therefore, where such an amendment is made after expiration of the limitation period it will defeat the limitation period. The point of McMahon is that such an amendment is regarded as acceptable; for the reason that it is not unfair so to defeat the limitation period where the defendant has been made to understand the true nature of the offence alleged before the limitation period expired.

Logically, the same reasoning applies to a charge which is defective in that it fails to aver an essential element of the offence (and does not otherwise disclose ex facie the true nature of the offence) if, before the expiration of the limitation period, the true nature of the offence alleged is otherwise conveyed in writing to the defendant; for example, by particulars, or letter or even provision of the police brief. In terms of what is just, there is no difference. In each case, the defendant is made to understand, before expiration of the limitation period, the true nature of the offence alleged and, in each case, the amendment does no more than make the charge accord to that understanding.

I don’t quite grasp the point Nettle JA makes. Maybe it will become clear on re-reading the judgments of Nettle and Tate JJA. It seems to me that some contradictory authorities are trying to be reconciled, but they don’t fit neatly together. Tate JA [at 68] states pretty emphatically that in a statutory regime with a power of amendment, a charge which is defective because it fails to refer to the relevant statutory provision alleged to be contravened ought not to be treated as a nullity, whatever its status might be at common law. But if the wording of an information does fail to disclose an essential element of the charge, how it can it be said that the information makes known to the accused the nature of the charge alleged?

Smith v Van Maanen (1991) 14 MVR 365 allows a court to use all of the charge documents read together to give charges the meaning intended by their draughtsman. Typically when assessing whether a charge capable of amendment is before the court the test applied is objective, based upon what the charge documents alone disclose, not on an exploration of what facts were in possession of the accused at the time of receipt of the charges.

In Kypri it’s suggested that an assessment of what the accused actually knew prior to the expiration of the limitation period should be undertaken [Nettle JA, at 41]:

At all events, I consider that, if the police brief in this case were provided to the respondent before the expiration of the limitation period, and its contents were such as to enable the respondent to understand that the case alleged against him was one of failing to comply with a requirement to accompany the informant to a place for the purposes of a breath test, which requirement was made because the respondent had undergone a preliminary breath test and in the opinion of the informant it indicated that the respondent’s breath contained alcohol, it would be open (and, other things being equal, it would be appropriate) to amend the charge to make clear that the reference to s 55 is a reference to sub-section (1) of s 55.

The magistrate in Kypri considered amending the charge and decided not to. The Court of Appeal seems to gloss over the fact that the prosecution didn’t make an application to amend the charge, accepting as a matter of fact [at 47] that the prosecutor wasn’t given an opportunity to do so.

Nettle JA, at 48:

The magistrate having embarked on a consideration of whether the defect in the charge in this case should have been amended, as he was right to do, I consider that the questions which the magistrate needed to decide were as follows:

a) Whether, before the expiration of the limitation period, the police brief was supplied to the defendant or his representatives and whether it made clear that the case alleged against the defendant was one of failing to comply with a requirement to accompany the informant to a place for the purposes of a breath test, which requirement was made because the respondent had undergone a preliminary breath test and in the opinion of the informant it indicated that the respondent’s breath contained alcohol;

b) If so, whether the defendant was able to point to anything which showed that he could not reasonably have been understood that the case alleged against him was one of failing to comply with a requirement to accompany the informant to a place for the purposes of a breath test, which requirement was made because the respondent had undergone a preliminary breath test and in the opinion of the informant it indicated that the respondent’s breath contained alcohol; and

c) If not, whether there was any reason, in those circumstances, which would render it unjust to allow the charge to be amended so as to make specific reference to s 55(1) (and thereby to make the form of the charge accord to the case which the defendant had always understood was alleged against him)?

The matter was remitted to the Magistrates’ Court to allow this process to happen.

It seems that where a brief of evidence was served on the accused within twelve months of the offence the charge will be considered valid (ineffective, but capable of amendment by the prosecutor or the court). In cases where no brief was served, or an infringement notice was issued, the situation is unclear.

The cases of Piscopo and Rukandin were argued at the same time as Kypri, but were not decided today. Anybody have a date when those judgments are to be handed down?