The High Court today refused leave to appeal in DPP v Fox. This means the Court of Appeal case of Fox v DPP; Bant v Grant; Nunn v Pezzimenti (2022) 99 MVR 130 is the most authoritative statement of the law on necessary particulars in a charge and charge-sheet under the Criminal Procedure Act 2009.
Mathew Fox was charged with speeding, contrary to Road Safety Road Rules 2019 r 20(2), allegedly at Nar Nar Goon on the Princes Freeway between Interchange Road and Snell Road. Problem was, there is no Interchange Road in Nar Nar Goon!
The charge was dismissed by a magistrate, accepting that the charge didn’t specify the time the offence occurred, and incorrectly described a location that didn’t exist.
The DPP appealed, and the Supreme Court held the charge was valid.
Mr Fox sought leave to appeal that decision to the Court of Appeal, but was refused.
The argument centred around the operation of Criminal Procedure Act 2009 ss 6(3), 8, and Schedule 1, cl 1, which relevantly provide:
6. Commencement of a criminal proceeding in the Magistrates’ Court
…
(3) A charge-sheet must—
(a) be in writing; and
(b) be signed by the informant personally; and
(c) comply with Schedule.
…
8. Order for amendment of charge-sheet
(1) The Magistrates’ Court at any time may order that a charge-sheet be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.
(2) If a charge-sheet is amended by order under this section, the charge-sheet is to be treated as having been filed in the amended form for the purposes of the hearing and all proceedings connected with the hearing.
(3) An amendment of a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of the period, if any, within which a proceeding for the offence may be commenced.
(4) 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 amenment does not amount to the commencement of a proceeding for a new offence; and
(c) the amendment will not cause injustice to the accused.
Schedule 1––Charges on a charge-sheet or indictment
1 Statement of offence
A charge must—
(a) state the offence that the accused is alleged to have committed; and
(b) contain the particulars, in accordance with clause 2, that are necessary to give reasonable information as to the nature of the charge.
(c) the amendment will not cause injustice to the accused.
The Court of Appeal (at [6]) drew a distinction in the Act between:
- a charge-sheet — the document that sets out a charge, and
- a charge — the allegation of offending contained in the charge-sheet.
The Court then held at [52] & [54]:
A charge that fails to disclose an offence known to law would, ipso facto, fail to comply with cl 1(b) of Sch 1. Such a charge would also be invalid at common law. However, although a charge of this kind is also commonly described as ‘invalid’ under the CPA,33 it is important to emphasise that the power of amendment of a charge-sheet in s 8 — which includes a power to amend a charge on a charge-sheet—means that, as Nettle JA explained in Kypri, a charge that would have been invalid at common law is capable of amendment under s 8 of the CPA (so long as the constraints on the amendment power are not transgressed). Thus such a charge is not a nullity, and in that regard it may be misleading to describe it as ‘invalid’. Rather, it would be preferable to describe such a charge as ‘ineffective’, to use the language adopted by Nettle JA in Kypri. That is, as his Honour explained, such a charge is insufficient to found a conviction. That is consistent with what Dixon J said in Johnson v Miller, namely that ‘[i]f it appears to the court of summary jurisdiction that … the complaint fails to disclose any offence or matter of complaint, then, unless the complaint is amended, the court must dismiss it’.
…
In our opinion, the language of s 8(4)(a) is directed at quite a different level of specificity than the language of cl 1 of Sch 1. That is, the latter requires precise and specific information about the offence and the facts giving rise to the charge. In contrast, s 8(4)(a) requires something less: that the ‘nature’ of the offence (rather than the precise offence) be ‘sufficiently’ disclosed. That must permit something less than full and specific disclosure, in order to give the words ‘sufficiently’ and ‘nature of’ some work to do. Whether the nature of an offence is sufficiently disclosed will be a question of fact and degree that will depend on the offence in question and the way in which the charge is framed.
Further, at [62], the Court held that the Criminal Procedure Act departs from the common law in a one important regard.
A failure of a charge to aver an essential element of an offence does not necessarily equate with a failure of a charge-sheet to sufficiently disclose the nature of an offence.
This set the scene for the next big change, at [66]:
In our opinion, the language of s 8(4)(a) is directed at quite a different level of specificity than the language of cl 1 of Sch 1. That is, the latter requires precise and specific information about the offence and the facts giving rise to the charge. In contrast, s 8(4)(a) requires something less: that the ‘nature’ of the offence (rather than the precise offence) be ‘sufficiently’ disclosed. That must permit something less than full and specific disclosure, in order to give the words ‘sufficiently’ and ‘nature of’ some work to do. Whether the nature of an offence is sufficiently disclosed will be a question of fact and degree that will depend on the offence in question and the way in which the charge is framed.
So in the case of Matthew Fox’s speeding charge, although the charge might have failed to contain an essential element — the correct location of the alleged offending — the charge-sheet still sufficiently disclosed the nature of the offence, which was exceeding a speed limit.
The $64,000 question is how will courts know when an invalid charge nonetheless sufficiently discloses the nature of the offence and the charge-sheet might be capable of amendment! Like everything in the law, it depends. At [68], the court observed that s 8(4)(a) is broader and less demanding that Sch 1, cl 1, but still has limits protecting the accused from injustice and precluding the circumvention of a limitation period by the use of an amendment power.