DPP Reference No 2 of 2001; Collicoat v DPP; Bell v Dawson

(2001) 4 VR 55; [2001] VSCA 114

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Driving offences
3. › Breath testing
4. › Offences under Road Safety Act 1986 (Vic)
5. › Essential elements of offences under ss 49(1)(e) and 49(1)(f)
6. › Whether preliminary breath test under s 53(1) an essential element required to be alleged in charge
7. › Whether charge a nullity
8. › Road Safety Act 1986 (Vic), ss 49(1)(e), 49(1)(f), 53(1), 55(1)
1. Criminal Law
2. › Charges and informations
3. › Sufficiency of charge
4. › Requirement to describe offence
5. › Distinction between essential elements of offence and facts necessary to be proved
6. › Whether charge must allege all preconditions to proof
7. › Magistrates' Court Act 1989 (Vic), s 27
1. Criminal Law
2. › Charges and informations
3. › Amendment of charges
4. › Power to amend defective charges
5. › Whether charge disclosing no offence capable of amendment
6. › Whether amendment permitted after expiry of limitation period
7. › Magistrates' Court Act 1989 (Vic), s 50
1. Criminal Law
2. › Charges and informations
3. › Construction of charges
4. › Whether charge to be read as a whole including summons
5. › Whether word 'refuse' implies prior requirement
6. › Interpretation according to understanding of reasonable defendant

Quick Take

The essential elements of offences under ss.49(1)(e) and 49(1)(f) of the Road Safety Act 1986 (Vic) are prescribed by those sections themselves and do not incorporate by reference the preconditions in ss.53 and 55. A charge need not allege the conduct of a preliminary breath test under s.53(1) or specify which category of person under s.53(1) applied. The use of 'pursuant to' rather than 'under' does not render a charge defective. Charges should be read as a whole and interpreted as a reasonable defendant would understand them.