Gigante v Hicks

(2001) 3 VR 296; [2001] VSCA 4

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Practice
3. › Summary offences
4. › Charge
5. › Amendment of charge
6. › Variance between charge and evidence
7. › Place of offending misstated
8. › Whether place is essential element of offence
9. › Whether amendment substitutes different offence
10. › Whether amendment permissible beyond 12 months after offending
11. › Magistrates' Court Act 1989 (Vic), ss 26(4), 50(1)
12. › Road Safety Act 1986 (Vic), s 49(1)(f)
1. Criminal Law
2. › Practice
3. › Question of law reserved
4. › Whether inutile to answer
5. › Court declining to answer where proposed submission has no prospect of success
6. › Crimes Act 1958 (Vic), ss 446(1), 447(1)
1. Criminal Law
2. › Practice
3. › Summary offences
4. › Charge
5. › Variance
6. › Distinction between variance in non-essential particulars and charging different offence
7. › Magistrates' Court Act 1989 (Vic), s 50(1)

Quick Take

The place of offending is not an essential element of the offence under s.49(1)(f) of the Road Safety Act 1986 (Vic), and amendment of the place in a charge does not constitute the substitution of a different offence. Such amendment is permissible beyond the 12-month time limit in s.26(4) of the Magistrates' Court Act 1989 because the offence remains the same. Observations in Kerr v Hannon [1992] 1 VR 43 and Goodman v Stafford (1992) 15 MVR 145 suggesting otherwise are disapproved.