IN THE MAGISTRATES’ COURT OF VICTORIA 
AT CASTLEMAINE
CRIMINAL Division

Case No. K12034309  

CONSTABLE SOPHIE BUYS	Prosecution	
		
v   		
		
STUART THOMAS	Accused	

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MAGISTRATE:	J GRAINGER	
WHERE HELD:	Castlemaine	
DATE OF HEARING:	17 July 2020, 29 July 2020 and 28 August 2020	
DATE OF DECISION:	15 October 2020 	
CASE MAY BE CITED AS:	Buys v Thomas	
MEDIUM NEUTRAL CITATION:	[2020] VMC 022	

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CATCHWORDS –  Criminal law – Whether charge under s49(1)(f) of Road Safety Act 1986 (Vic) is duplicitous – Whether charges under ss49(1(b) and 49(1)(f) of Road Safety Act 1986 (Vic) comply with s6(3) of Criminal Procedure Act 2009 (Vic) – Whether charges contain particulars necessary to give accused reasonable information as to the nature of the charge and are set out in ordinary language under sch 1(b) and (2) of Criminal Procedure Act 2009 (Vic).

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APPEARANCES:
	Counsel	Solicitors	
For the Prosecution	Senior Constable Martin Friend	Bendigo Prosecutions Unit	
			
For the Accused	Warwick Walsh-Buckley	DIB Legal	

HER HONOUR:

BACKGROUND
1.	The accused, Stuart Thomas has been charged with failing to comply with s49(1)(f) (charge 1) and s49(1)(b) (charge 2) of the Road Safety Act 1986 (Vic) (RSA). 
2.	Section 49(1)(f) of the RSA states:
A person is guilty of an offence if he or she … within 3 hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis by a breath analysing instrument under section 55 and 
(i)     the result of the analysis as recorded or shown by the breath analysing instrument indicates that the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her breath, and 
(ii)     the concentration of alcohol indicated by the analysis to be present in his or her breath was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle.
3.	Section 49(1)(b) of the RSA provides:
A person is guilty of an offence if he or she … drives a motor vehicle or is in charge of a motor vehicle while the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her blood or breath.
4.	The terms ‘motor vehicle’, ‘prescribed concentration of alcohol’ and ‘breath analysing instrument’ are defined in s3 of the RSA.
5.	The offences were alleged committed on 14 April 2019 and Mr Thomas was served with the charges and summons on 25 July 2019. 
6.	Charge 1 reads:
The accused at CASTLEMAINE on 14/04/2019 did within 3 hours after driving a motor vehicle furnish a sample of breath for analysis by a breath analysing instrument pursuant to section 55 of the Road Safety Act 1986 and the result of the analysis recorded or shown by the breath analysing instrument indicated that more than the prescribed concentration of alcohol being .05 grams per 210 litres of exhaled air was present in his breath and the concentration of alcohol indicated by the analysis to be present in his breath was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle.  (Alleged Reading 0.111%).
7.	Charge 2 reads:
The accused at CASTLEMAINE on 14/04/2019 did drive a motor vehicle while more than the prescribed concentration of alcohol was present in his breath being .05 grams per 210 litres of exhaled air (Alleged Reading 0.111%).
8.	In order to prove its case against Mr Thomas, the prosecution must satisfy the court beyond reasonable doubt that on 14 April 2019 at Castlemaine:
a.	Mr Thomas was driving a motor vehicle (ss49(1)(b), 49(1)(f) and 53(1)(a) of the RSA), 
b.	Mr Thomas was required by a police officer to undergo a preliminary breath test by a prescribed device under s53(1)(a) of the RSA, 
c.	Mr Thomas took the preliminary breath test (s55(1) of the RSA), 
d.	the preliminary breath test, in the opinion of the police officer in whose presence the test was made indicated that Mr Thomas’ breath contained alcohol (s55(1)(b) of the RSA), 
e.	Mr Thomas was required by a police officer to furnish a sample of breath for analysis by a breath analysing instrument (s55(1) of the RSA) (the evidentiary breath test), 
f.	Mr Thomas was required for that purpose to accompany a police officer for the purposes of section 53 of the RSA to a place or vehicle where the sample of his breath was to be furnished (s55(1) of the RSA),
g.	Mr Thomas was required to remain there until:
i.	he had furnished the sample of breath and any further sample required to be furnished under subsection (2A), and
ii.	he had been given the certificate referred to in subsection (4) or until three hours after the driving, whichever is sooner (s55(1) of the RSA), 
h.	Mr Thomas furnished a sample of breath for analysis by a breath analysing instrument under s55 of the RSA within three hours of driving a motor vehicle (s49(1)(f) of the RSA), 
i.	the result of the analysis showed by the breath analysing instrument indicated that the prescribed concentration of alcohol or more than the prescribed concentration of alcohol was present in Mr Thomas’ breath (s49(1)(f)(i) of the RSA), and
j.	the concentration of alcohol indicated by the analysis to be present in Mr Thomas’ breath was not due solely to the consumption of alcohol after driving the motor vehicle (s49(1)(f)(ii) of the RSA).
9.	Mr Thomas has applied for charges 1 and 2 to be dismissed on the basis that:
a.	Charge 1 is invalid because it is duplicitous, that is, it fails to clearly state whether Mr Thomas is charged with having more than the prescribed concentration of alcohol in his breath within three hours of driving a motor vehicle or being in charge of a motor vehicle.
b.	Charges 1 and 2 are invalid because they do not comply with cl 1(b) and 2 of sch 1 of the Criminal Procedure Act 2009 (Vic) (CPA). 
10.	Mr Thomas also submitted that if the Court is satisfied that the charges are invalid for any of the above reasons, the Court should not grant the prosecution leave to amend the charges under s8 of the CPA.
The law
11.	At common law, a criminal charge must include the legal elements of the charge and the essential factual ingredients of the alleged misconduct for the charge to be valid. 
12.	In Victoria, a charge must also comply with section 6(3) of the CPA, which in turn requires compliance with sch 1 of the CPA. As Mr Thomas has been charged with two statutory offences, compliance is achieved by identifying the provisions creating the offences and describing the offences in the words or similar of the provisions themselves. 
13.	Relevantly, schedule 1 provides: 
		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. 
		2. Statement of particulars 
(1) Subject to subclause (2), particulars of the offence charged must be set out in ordinary language and the use of technical terms is not necessary. 
		…
		3. Statutory offence 
		(1)  In this clause— 
	statutory offence means an offence created by an Act or subordinate instrument, or by a provision of an Act or subordinate instrument. 
		(2)  For the purposes of clause 1(a), a statement of a statutory offence is sufficient if it— 
			(a)  identifies the provision creating the offence; and 
			(b)  describes the offence in the words of the provision creating it, or in similar words. 
		(3)  If a statutory offence states— 
	(a)  the offence to be committed in alternative ways; or 
	(b)  any element or part of the offence in the alternative— 
	a charge may state the commission of the offence or the element or part of the offence in the alternative. 
14.	Clause 1 of sch 1 of the CPA has two requirements. First, the charge must state the offence the accused is alleged to have committed, that is, state the legal elements of the charge. Second, the charge must contain the particulars in accordance with cl 2 that are necessary to give the accused reasonable information as to the nature of the charge, in other words, the factual allegations said to bring the accused within the offence (the reasonable information).  The reasonable information must be contained within the charge itself. 
15.	The requirements of the CPA ‘do not supplant the common-law requirements. Rather, the common law elucidates what constitutes reasonable information. That is, if the charge is to be valid, the essential factual elements of the offence, in addition to its legal nature, must be identified in the charge.’ 
16.	In the 2015 decision of Baiada Poultry Pty Ltd v Victorian WorkCover Authority, the Court of Appeal summarised the applicable legal principles as follows:
a.	At common law, the traditional function of the charge was to found the jurisdiction of the court to deal with the alleged offence.
b.	In more recent times, the charge is also to inform the defendant of the substance of the offence which he or she is called on to meet. 
c.	Schedule 1 of the CPA that specifies what a charge must state does not obviate the common law requirements as to a valid charge.
d.	A valid charge must specify all the elements of the offence that the defendant is alleged to have committed. 
e.	The charge must specify the facts relied on to make out the legal elements of the charged offence, including the particular facts, matters or things alleged as the foundation of the charge. 
f.	An invalid charge should be quashed by the Court unless validly amended. 
g.	Information on how the case is to be proved is not required to be included in the charge, but the facts matters or things to be proved must be included in the charge….
17.	The Court of Appeal also stated that the question for the court is, bearing the relevant authorities in mind, whether charge contains ‘the particulars necessary to give reasonable information as to the nature of the charge. The “nature of the charge” involves the conduct making up the actual ingredients of the offending....’ 
18.	As Quigley J put it in Wells v Stillman (Wells), what the court needs to ask in each case is ‘whether the charge sufficiently makes known what the accused failed to do and should have done’ and ‘it is generally necessary to do more than merely reciting the statutory language or using words of general application because this would not generally identify the conduct making up the actual ingredients of the offending’. 
19.	However, the requirement for sufficient particulars does not go so far as requiring the charge to contain all such material as a defendant may require upon application for particulars for the preparation of the defence. What is necessary are sufficient particulars to make it clear what was the act or omission alleged to constitute the offence. 
20.	The question of whether a charge contains the essential legal and factual elements of the offence is to be viewed from the point of view of a reasonable defendant. In Director of Public Prosecutions v Kypri, Nettle JA (as his Honour then was) stated that: 
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. 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. 
Is Charge 1 duplicitous because it fails to clearly state whether Mr Thomas is charged with having more than the prescribed concentration of alcohol in his breath within three hours of driving a motor vehicle or being in charge of a motor vehicle?
Mr Thomas’ submissions in relation to whether charge 1 is duplicitous
21.	Mr Thomas submitted that the inclusion of the words ‘or being in charge of the motor vehicle’ at the end of the charge breaches the common law rule that it is impermissible to plead two offences within the same charge as alternatives. 
22.	In support of this submission, Mr Thomas relied on the Court of Appeal’s decision in Kypri. In Kypri, the accused was charged with failing to comply with s49(1)(e) of the RSA. Nettle JA, with whom Ashley JA and Tate JA agreed, found that the charge in question was defective because it did not refer to any of the sub-sections of s55 of the RSA that are referred to in s49(1)(e) but instead referred to s55 collectively or globally as a whole. On the facts in that case, ‘the charge and summons [did] not allege sufficient facts to enable a reasonable defendant to determine ex facie the sub-section of s55 under which the requirement was alleged to have been uttered, which rendered the charge defective’ because ‘it [failed] to convey the nature of the offence alleged.’ Whilst Mr Thomas has been charged with failing to comply with ss49(1)(b) and49(1)(f) of the RSA, not s 49(1)(e), counsel for Mr Thomas, Mr Walsh-Buckley submitted that the Court of Appeal’s reasoning in Kypri is apposite to his client’s argument that charge 1 is duplicitous.
The prosecution’s submissions in relation to whether charge 1 is duplicitous
23.	The prosecution submitted that, interpreting charge 1 in the way in which a reasonable defendant would understand it, giving consideration to the words of charge 1 in their context, charge 1 is not duplicitous.
24.	This is because the wording in the first line of charge 1 unambiguously alleges that the accused was ‘driving a motor vehicle’. The prosecution submitted that, having read the first line of charge 1, a reasonable defendant would be in no doubt that the charge alleges the accused was driving. 
25.	The prosecution also submitted that whilst charge 1 states in the last line that the alcohol in the accused’s breath was not due solely to alcohol consumption ‘after driving or being in charge of the motor vehicle,’ a reasonable defendant would understand from the unambiguous statement in the first line that charge 1 is alleging that Mr Thomas was driving a motor vehicle and that the words ‘or being in charge’ in the last line, as a matter of common sense, are redundant. The prosecution submitted that the words ‘or being in charge’ were ‘unnecessary’ but were not ‘confusing’ or ‘misleading’ and that giving consideration to the words of charge 1 in their context, a reasonable defendant would understand that the charge was alleging that the accused was driving a motor vehicle. 
26.	The prosecution also submitted that because the words ‘or being in charge of the motor vehicle’ referred to an act Mr Thomas did not do, that is, drink alcohol whilst being in charge of a motor vehicle, if Mr Thomas was in doubt about whether the charge alleges that he was ‘driving’ or ‘in charge’ of a motor vehicle,  a reasonable defendant would know that a person alleged to have been driving must have satisfied the definition of being ‘in charge’ just before driving, and if a reasonable defendant asked themselves which act does the charge allege to have occurred within the three hour temporal limit, the common sense answer is the most recent act is the one being alleged, that is, the driving, as is unambiguously stated in the first line of charge 1 and that this ‘makes the nexus between the temporal limit and the act alleged’. 
27.	In addition, the prosecution submitted that under s32(2) of the CPA, Mr Thomas could have asked for further and better particulars of the charge in relation to whether it was being alleged that he was driving or in charge of the motor vehicle, which he did not do.
28.	 Finally, the prosecution submitted that the court can be satisfied that Mr Thomas has not been left in doubt over what is alleged by the prosecution in charge 1 because he agreed that the contested hearing was to proceed on 26 May 2020, which predates Mr Thomas raising the issue of duplicity in relation to charge 1.
29.	The prosecution relied on Macauley J’s decision in DPP v Sheerin that ‘a charge is to be interpreted in the way in which a reasonable defendant would understand it, giving consideration to the words of the charge in their context’ in support of their submissions. 
Mr Thomas’ submissions in reply in relation to whether charge 1 is duplicitous
30.	In reply, Mr Thomas submitted that the fact that he could have asked for particulars from the prosecution and that he did not raise the issue of whether the charges complied with sch 1(b) and 2 of the CPA until after he agreed to a contested hearing were irrelevant because the Court of Appeal in Baiada and the Supreme Court in Wells made it clear that the necessary reasonable information must be contained in the charge and that if any reasonable information is missing from the charge, it should be quashed unless validly amended. He also relied on Kypri, where the Court of Appeal rejected the prosecution’s submission that the accused in that case could not have been in doubt as to the facts of the offence alleged because his solicitors were provided with the complete police brief of evidence.
31.	Mr Thomas also submitted that the court should not apply DDP v Sheerin on the basis that it was per incuriam because Macauley J did not refer to s(6)3 and sch 1 cl 1(b) and 2 of the CPA and because the accused is in the process of appealing the decision.
Discussion and findings in relation to whether charge 1 is duplicitous
32.	In Kypri, Nettle JA observed that ‘s 49(1)(f) creates but one offence (of having a blood alcohol concentration greater than the prescribed percentage) albeit the offence may be committed in a number of different circumstances.’
33.	Whilst Mr Walsh-Buckley submitted that the Court of Appeal’s reasoning in Kypri is apposite to Mr Thomas’ argument that charge 1 is duplicitous, he also submitted that it is unclear whether the Court of Appeal found that the charge was defective because it was duplicitous or because it did not identify which particular offence out of a range of alternatives was alleged by the prosecution.
34.	In my view, it is clear that Nettle JA found that the charge was defective because it did not contain an essential element of the charge rather than because the charge was duplicitous. The Court of Appeal’s decision makes multiple references to the charge not containing an essential element of the offence and at paragraph 25, Nettle JA clearly states, ‘contrary to the respondent’s submissions, however, the charge is not duplicitous.’
35.	In any event, I do not consider that the Court of Appeal’s decision in Kypri assists Mr Thomas either directly or by analogy. As Nettle JA observed, his finding that the charge was defective ‘does not mean that every charge which alleges an offence under s49(1)(e) is fatally flawed unless it refers by name to the sub-section of s55 under which the requirement is alleged to have been made. 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.’ 
36.	In my view, having interpreted charge 1 in the way in which ‘a reasonable defendant would understand it, giving reasonable consideration to the words of the charge, in their context’, the wording of charge 1 makes it clear the prosecution is alleging that Mr Thomas had more than the prescribed concentration of alcohol in his breath within three hours of driving a motor vehicle and that the alcohol in his breath was not due solely to the consumption of alcohol after driving the motor vehicle. The ‘inelegant drafting’ of charge 1 where the words ‘or being in charge of the motor vehicle’ were included at the end of the charge does not, in my view, ‘obscure the core elements of the offence’.  It would be obvious to a reasonable defendant having read the whole charge that the words ‘or being in charge of the motor vehicle’ in the last line were included in error and in my view, the meaning of the words in charge 1 is clear.
37.	For these reasons, I find that charge 1 is not defective.
Are charges 1 and 2 invalid because they do not comply with clauses 1(b) and 2 of sch 1 of the Criminal Procedure Act 2009?

Mr Thomas’ submissions in relation to whether charges 1 and 2 are invalid 
38.	Mr Thomas submitted that the prosecution has failed to provide the necessary reasonable information as to the nature of charges 1 and 2. Mr Thomas submitted, using the language of the High Court in John L Pty Ltd v Attorney-General (NSW), that ‘the conduct making up the actual ingredients of the offending’ has not been included in its entirety and that ‘near enough is not good enough for the new CPA mandated contents of charge sheets.’  
39.	In support of his submissions, Mr Thomas relied on Quigley J’s decision in Wells, in particular where Quigley J observed:
In Baiada, the Court of Appeal said although cl 1(b) of sch 1 of the CPA has much in common with the approach of the common law, it has nonetheless affected the common law in that it supplies a statutory test for determining the adequacy of the particulars furnished as part of the charge. In their judgment, Ferguson and McLeish JJA quoted a series of expressions from the common law cases which illustrated the information that is required for a valid charge, including the following: 
		(a)  specifying the time, place and manner of the defendant’s acts or omissions; 
(b)  whatever is necessary to show that the person convicted has done something which brought him within the words of the statute; 
		(c)  the nature of the offence and the manner in which it has been committed; and 
		(d)  the essential factual ingredients of the offence. 
The question for determination is not whether the legal components of the charge are pleaded in accordance with cl 1(a) of sch 1 but rather whether compliance with cl 1(b) has been achieved on the facts and context of the offence in question. 
In this, it is necessary in applying the statutory definition to have regard to the common law articulation of this issue. 
40.	In Wells, Quigley J decided that the wording of the charge against the accused officer (that he ‘…accessed police information contrary to his duty…’) was not sufficient for the purposes of cl 1(b) of Sch 1 of the CPA because the charge did not particularise the ‘police information’. Quigley J held that the accused officer was entitled ‘to know what is the material and particular information which forms the subject of the offence.’ 
41.	Mr Thomas also relied on the decision of Southgate v Nitschke (Southgate). In Southgate, Priest JA said that he would have found certain charges in relation to breaches of the Food Act 1984 were invalid but for the fact that the charges were particularised with the description that the ‘food’ was ‘egg mayonnaise’ or ‘cocktail sauce’ even though the description of the element ‘food’ was only a particular.  
42.	Specifically, Mr Thomas submitted that charges 1 and 2 lack the following reasonable information:
a.	The time Mr Thomas is alleged to have committed the offences (relying on Johnson v Miller, where  Latham CJ held that a ‘…complaint must show upon its face that what is charged is an offence according to law, and it is sufficient if it sets forth the acts which are relied upon as constituting the offence with such a reference to time and place as identifies those acts’ (emphasis added).
b.	The precise place in Castlemaine where Mr Thomas is alleged to have committed the offences.
c.	The type of motor vehicle Mr Thomas is alleged to have been driving when he committed the offences.
d.	Whether Mr Thomas was required to undergo a breath test because the result of the preliminary breath test administered under s 53(1) of the RSA showed there was alcohol in his breath or because a police officer had reasonable grounds to believe Mr Thomas had breached ss49(1)(a) or 49(1)(b) of the RSA.
e.	In relation to charge 1, an explanation in ‘ordinary language’ of what ‘pursuant to s55 of the Road Safety Act’ means.
f.	In relation to charge 2, what instrument was used to detect the excess blood alcohol concentration.
43.	Mr Thomas submitted that each of the matters set out above should be considered essential factual or legal elements of the offences of failing to comply with ss49(1)(b) and 49(1)(f) of the RSA for the following reasons:
a.	The time that the offence was committed is a factual element for both offences as the driver does not have to undergo the evidentiary breath test if three hours have passed since he or she was found driving (s55(6) RSA). In addition, the time the offence was committed is an essential legal element in relation to the s49(1)(f) offence because the prosecution must prove beyond reasonable doubt that the test was done within three hours of an accused driving a motor vehicle (s9(2)(a) of the CPA). 
b.	The precise place where the offence is alleged to have occurred, such as a street is a factual element for both offences because it may found a possible defence such as an alibi (relying again on Johnson v Miller).   
c.	The type of motor vehicle is a factual element of both charges as certain vehicles are excluded from the exhaustive definition of motor vehicle in s 3(1) of the RSA. Accordingly, the prosecution must prove that the accused was driving a motor vehicle as defined by s3(1) and that the motor vehicle was not excluded from the definition by declaration under s3(2)(b) of the RSA. Mr Thomas submitted that the accused is entitled to know the type of motor vehicle the prosecution alleges he was driving for the same reasons the accused in Wells was entitled to know what ‘police information’ he was alleged to have ….  and for the same reason that the court in Southgate would have found the charges under the Food Act 1984 invalid but for the fact that the charge described the food as egg mayonnaise or cocktail sauce, even though the description of the element ‘food’ was only a particular. 
d.	Whether the source of power enlivening s55 of the RSA was subsection (1) (a preliminary breath test under s 53(1) of the RSA) or subsection (2) (where a police officer had reasonable grounds to believe the accused had breached ss49(1)(a) or 49(1)(b)) because the prosecution must prove that the PBT had been administered or that the police officer had reasonable grounds for his or her belief.
e.	In relation to charge 1 (the s49(1)(f) offence), simply stating ‘pursuant to s 55’ does not comply with cl 2 of sch 1 of the CPA because the particulars of that aspect of the offence have not been set out in ‘ordinary language’, particularly as this section of the RSA is lengthy and intricate and it contains many alternatives. A reasonable defendant would have to find a copy of the RSA to understand what is being alleged by the prosecution and then would have to guess which of the alternatives is being alleged.
f.	In relation to charge 2 (the s49(1)(b) offence), knowing what instrument was used to detect the excess blood alcohol concentration is one of the factual ingredients of the offence to be proved by the prosecution and it is reasonable for the accused to know which instrument was used because it may found a defence that the instrument was not an authorised breath analysing instrument or that a reliable scientific method to determine blood alcohol was not used.
44.	Mr Walsh-Buckley submitted on behalf of Mr Thomas that in order to comply with clauses 1(b) and (2) of sch 1 of the CPA and the common law requirements, charge 1 should have contained the following words or something similar:
The accused at 3.12pm in Barker Street, Castlemaine, on 14 April 2019, was found driving a motor vehicle [a White Volvo XC90 station wagon registration ASY225] and after being intercepted by police, was administered a preliminary breath test under s53(1) of the Road Safety Act 1986 by a prescribed device, and the test having indicated the presence of alcohol in the accused’s breath in the opinion of [name of police officer] exceeding the prescribed concentration of alcohol, being 0.005gm per 210 litres of exhaled air, the accused was required to accompany [name of police officer] to the onsite breath testing vehicle for the purposed of undergoing a breath test on an authorised breath analysing instrument under s55(1) of the RSA and remain there for up to three hours or until a certificate of analysis was given to him and the concentration indicated to be present in the accused’s breath was not solely due to consumption of alcohol after driving the motor vehicle. 
45.	He also submitted that the fact that Mr Thomas was subsequently served with a copy of the brief is not relevant to the court’s finding about whether charges 1 and 2 comply with clauses 1(b) and 2 of Sch 1 of the CPA. Mr Thomas again relied on Kypri, where the Court of Appeal held that ‘the validity of a charge is to be determined according to the contents of the summons and charge and a defendant is entitled to insist upon a valid charge before the matter proceeds to evidence’. 

The prosecution’s submissions in relation to whether charges 1 and 2 are invalid 
46.	The prosecution agreed that the charges must set out the essential legal and factual elements of the offences but submitted that this does not require particulars over and above those sufficient to disclose the nature of the charge. The essential factual elements of an offence are materially different from the particulars of the facts that would enable the accused to understand the boundaries of the case that it must meet at trial. The prosecution denied that it was necessary for the charge to contain the time of the alleged offence, the type of vehicle driven by the accused, a more specific location than ‘Castlemaine’ and details of which evidentiary breath test device was used in order for the charges to comply with cl 1(b) of sch 1 of the CPA. 
47.	The prosecution also relied on Quigley J’s decision in Wells in support of their submissions, in particular where she said:
The question for determination is not whether the legal components of the charge are pleaded in accordance with cl 1(a) of sch 1 but rather whether compliance with cl 1(b) has been achieved on the facts and context of the offence in question.
48.	However, the prosecution submitted that Quigley J’s reasoning in Wells should not be applied to the charges in Mr Thomas’ case. This is because part of Quigley J’s reasoning was that the definition of ‘police information’ in the Victoria Police Act 2013 is very broad and there is ‘little doubt that in a police officer’s day to day activities he or she would be accessing a wide range of “police information” in accordance with the definition in s225, and that similar reasoning does not apply to charges under ss49(1)b) and 49(1)(f) of the RSA.
49.	Specifically, the prosecution submitted that:
a.	The time, precise place, make of the vehicle Mr Thomas was driving and the identity of the breath test instrument used for the breath test when Mr Thomas is alleged to have committed the offences is not reasonable information that needs to be included in the charges. 
The prosecution case alleges two charges which cover one incident of driving on 14 April 2019 in Castlemaine, which is in the state of Victoria. It is an inherent component of charges under ss49(1)(b) and 49(1)(f) of the RSA that the accused must have been in the presence of a police officer and that he complied with the officer’s requirement that he furnish a sample of breath for analysis. 
Unless Mr Thomas was intercepted and returned a positive reading on at least one other occasion on the same day, Mr Thomas knew the time of day, the precise location, the make of the vehicle he was driving, and the breath test instrument used even before the charges were served on him.
b.	In addition, the time of day is not an essential particular to include in a charge under s49(1)(f) because the inclusion of the words ‘within 3 hours’ makes it clear that the informant alleges the temporal limit between the time of driving and the evidentiary breath test did not expire before the test was performed. The onus is on the prosecution to satisfy the trier of fact that the time of day fell within that parameter.
c.	It is also inherent that the accused is notified by police on that occasion that he has returned a blood alcohol reading in excess of the prescribed concentration, as immediately after the evidentiary breath test was performed, Mr Thomas was handed a certificate containing the prescribed particulars produced by the breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in his breath under s55(4) of the RSA (the certificate of analysis).  
d.	The certificate of analysis also identifies the time of the test and the type of instrument used for the test. 
e.	The fact that Mr Thomas was given the certificate of analysis on the day he allegedly committed the offences under ss 49(1)(b) and 49(1)(f) is relevant to the court’s consideration of the context of the charges against Mr Thomas and what reasonable information should have been contained in those charges. 
f.	The registration number of the vehicle Mr Thomas was driving was included on the charge sheet in any event.
g.	The type of motor vehicle would only need to be identified in the charges if it was reasonable for the accused to challenge it by adducing evidence that he was in some other type of car. In this matter, the accused seeks to draw an analogy with decision in Wells and to do so, Mr Thomas would need to argue that he is not clear about what type of motor vehicle he drives because he drives many different motor vehicles on a daily basis, some of which ss49(1)(b) and 49(1)(f) do not apply to.
h.	The same argument can be made in relation to Mr Thomas’ submission that the precise place the offences are alleged to have occurred at needs to be included in the charges. Mr Thomas would need to argue that he could have been in one of thousands of different locations in Castlemaine on 14 April 2019 and that he drove a motor vehicle whilst exceeding the prescribed concentration of alcohol at one of those other locations.
50.	In relation to the defence submission that the charges needed to state whether Mr Thomas was required to undergo an evidentiary breath test because the result of the preliminary breath test administered under s53(1) of the RSA showed there was alcohol in his breath or because a police officer had reasonable grounds to believe Mr Thomas had breached ss49(1)(a) or 49(1)(b) of the RSA, the prosecution submitted:
a.	There is no binding authority in relation to this contention.
b.	In relation to s49(1)(f) of the RSA (as it was worded in 1999), the High Court in Thompson v Byrne said:  
The precondition to the application of par (f) is nothing more than that, within three hours after driving or being in charge of a motor vehicle, the person charged has furnished a sample for breath analysis by a breath analysing instrument under s55(1).
However, it is important to note that the specific reference to subsection (1) of s55 in the above passage was made because the wording of s49(1)(f) at the time referred to ‘section 55(1). This is because subsection 55(1) was the only relevant subsection at that time. In contrast, the current wording of s49(1)(f) only refers to ‘section 55’ because of subsequent amendments to s55, which now offers two alternative subsections, ss 55(1) or 55(2).
c.	Accordingly, as per the above quote from Thompson v Byrne, the offence under s49(1)(f) is committed at the time of completion of the evidentiary breath test, not at the time of driving and not during the pathway taken to arrive at the breath test. 
d.	Mr Thomas cannot rely on the decision in Kypri in support of his submission that the charges should have included why Mr Thomas was required to undergo the evidentiary breath test because in Kypri, the court considered an offence under s49(1)(e) of the RSA and, unlike charges under ss49(1)(b) and 49(1)(f) of the RSA, a charge under s49(1)(e) must state the section that gives rise to the offence because s49(1)(e) states further alternative sections 55(1), (2), (2AA), (2A) or (9A) under which the offence of refusing a requirement can be committed, thereby creating alternative offences of which the applicable one must be nominated in the charge. 
Those offences are committed the moment the refusal is made and so the trail through the legislation terminates at those sections when an offence under 49(1)(e) is committed. That is not so with an offence committed under s49(1)(f) because it creates a single discrete offence. Section 49(1)(f) refers to s55 but not the two applicable subsections, being (1) or (2). The charge in relation to s49(1)(f) does not need to go so far as state the subsection relied on under s55 because those subsections do not describe discrete offences but rather describe alternative lawful pathways police officers must take in order to arrive at the one offence created by s49(1)(f). Accordingly, Kypri should be distinguished. 
Further, charge 1 states ‘section 55’ as it is written in s49(1)(f) and this is sufficient to meet the requirements of sch 1, as it informs the accused that the informant intends to adduce evidence that the path followed was lawful. The actual path taken is a question for the trier of fact and is described in the disclosure material. 
Accordingly, it is open to the court to rule that charge 1 is valid despite it not containing information in relation to whether s55(1) or (2) was the pathway the informant used to lawfully analyse a sample of the accused’s breath.
51.	In addition, the prosecution again relied on the fact that under s32(2) of the CPA, Mr Thomas is entitled to ask for particulars, which he has not done to date, and that the issue of the validity of the charges was not raised until after the time for amending the charges without leave of the court had expired. 
Are charges 1 and 2 invalid because they do not comply with clauses 1(b) and 2 of sch 1 of the Criminal Procedure Act 2009?
Discussion
52.	There is no doubt that courts have held for a long time that it is necessary for charges to specify the time, place and manner of an accused’s acts or omissions. 
53.	In addition, it is clear from an analysis of the cases of Wells and Baiada, which are relied on by Mr Thomas, that the particularisation of the charges that have been upheld as valid is greater than the charges in question here. However, as Quigley J observed in Wells, ‘in each case the court’s task is to test the charge against the requirements of the offence and it may be a question of degree as to whether the factual ingredients are in any case, sufficiently particularised’. 
54.	In this case, Mr Thomas is charged with failing to comply with ss49(1)(b) and 49(1)(f) of the RSA. Matters involving offences under ss49(1)(b) and 49(1)(f) of the RSA are very common in the Magistrates Court of Victoria, and Mr Walsh-Buckley agreed with the prosecutor’s contention that the wording of charges 1 and 2, which is set out in paragraphs 6 and 7 above, is the usual wording used by Victoria Police throughout Victoria when drafting charges under these provisions.
55.	Neither party was able to point to any decisions in this court or in higher courts in relation to challenges to ss49(1)(b) and 49(1)(f) of the RSA on the basis that they failed to comply with cl 1(b) and 2 of sch 1 of the CPA. 
56.	In addition, as Quigley J observed in Wells, ‘resort to reference to the circumstances of other authorities where the validity of the charge is challenged in respect of sufficiency of particulars must be treated carefully’. This is because ‘the adequacy of a charge must be considered in the legislative context of the charged offence’ and ‘the extent of particularisation required for any charge reflects directly the circumstances and articulation of the offence as it is drafted in the respective legislation.’ 
57.	Bearing this in mind, there are nevertheless many instances where the Supreme Court of Victoria has considered whether charges with similar wording to charges 1 and 2 contain all the necessary reasonable information that is required by sch 1 cl 1(a) of the CPA. For example, in DPP v Sheerin, the charge being considered by Macauley J read:
The accused at Inverloch on 11/02/2018 within 3 hours of being the driver of a motor vehicle was required to provide a sample of oral fluid for testing pursuant to section 55E(2)(a) of the Road Safety Act 1986 and for the purpose he accompanied a police officer to a testing vehicle and did refuse to remain at the location prior to providing a sample in accordance with section 55E. 
58.	Whilst the accused in DPP v Sheerin did not submit that the charges were invalid for the reasons put forward by Mr Thomas in this case, I infer from Macaulay J’s finding that the charge was valid, that the prosecution’s failure to include the time, precise place and make, model, registration number of the motor vehicle or a description of sections 55E or 55E(2)(a) of the RSA in ‘ordinary words’ did not render the charge invalid for failing to comply with sch 1 cl 1(b) and 2 of the CPA. I make this inference because compliance with cls 1(b) and 2 of sch 1 of the CPA is a jurisdictional requirement, the court does not have the power to hear a matter if a charge is invalid regardless of whether or not an accused has challenged the validity of the charge and an invalid charge should be quashed unless there is a statutory power to amend the charge. 
59.	In addition, whilst counsel for Mr Thomas submitted that the court should not apply Sheerin on the basis that it was per incuriam because Macauley J did not refer to s(6)3 and sch 1 cl 1(b) and 2 of the CPA, I am not persuaded that I should not follow Sheerin to the extent that this decision may be relevant by way of analogy to the legal and factual matters in dispute in this case. 
60.	Similarly, in Stanojlovic v Kokas, the charges considered by Daly AsJ read:
The accused at Corrigan Road on 14/08/2015, being a probationary driver, did drive a motor vehicle not being a tractor on a highway namely Corrigan Road without having a ‘P’ plate conspicuously displayed out from the front of such vehicle.
The accused at Noble Park on 14/8/2015, being a probationary driver, did drive a motor vehicle not being a tractor on a highway without having a ‘P’ plate conspicuously displayed out from the front of the vehicle.
61.	Whilst Daly AsJ found that the charge was invalid, this was due to reasons that are entirely unrelated to the legal and factual issues in dispute in this matter.
62.	Other examples of cases where the Supreme Court has considered charges that contained references to dates but not times of alleged offences, towns or suburbs but not precise places where offences were alleged to have been committed, motor vehicles but not the make, model, year and registration numbers of the motor vehicles and a detected speed but not what instrument was used to measure the speed of a motor vehicle to be either valid or invalid for reasons that are not relevant to the legal and factual issues in dispute in this case include Zumpano v Prestney, Schmidt v Newsom, Walters v Magistrates’ Court of Victoria and Foster v Harris.
63.	Accordingly, whilst on their face, Mr Thomas’ submissions appear to have some merit, it would be unprecedented for me to find charges 1 and 2 invalid for the reasons submitted by Mr Thomas. 
64.	Such a finding would also result in the prosecution having to provide an accused person with a much longer charge, such as the one set out in paragraph 44 above. Whilst I am sympathetic to counsel for Mr Thomas’ submission that providing an accused person with a charge using this wording is ‘best practice’ insofar as it gives an accused person, particularly a person with low literacy skills or who is not proficient in English or able to undertake their own legal research more information about the charges against them than the usual wording of the charges drafted by Victoria Police, in my view, this is not necessary nor required as a matter of law.
65.	However, in the event that I am unable to rely on the above cases as authority for a finding that charges 1 and 2 are valid, I also find for the reasons set out below that the charges are valid. 
Failure to include the time of the alleged offending
66.	As stated above, there is no doubt that courts have held for a long time that it is necessary for charges to specify the time, place and manner of an accused’s acts or omissions. 
67.	Nor is there any doubt that the charges do not specify the time Mr Thomas is alleged to have committed the offences and that this is a matter the prosecution will ultimately have to prove in order to satisfy the court that Mr Thomas had more than the prescribed concentration of alcohol in his blood within three hours of driving. 
68.	However, each and every fact that must be proved by the prosecution need not be contained in the charge – only those that are essential factual ingredients must be included in the charge, together with legal elements of the charge. Similarly, ‘the requirement for sufficient particulars does not go so far as requiring the charge to contain all such material as a defendant may require upon application for particulars for the preparation of the defence’, although it has also been held that an accused person could not be required to defend a charge if the information did not supply the particulars necessary to enable him or her to prepare their defence.
69.	Testing the charge against the requirements of ss49(1)(b) and 49(1)(f) of the RSA, I am not persuaded that the time of the alleged offences is reasonable information or an essential factual ingredient that ought to have been included in the charges. If Mr Thomas required this information in order to fully prepare his defence, he could have asked for that information under s32 of the CPA, which gives an accused person the right to receive reasonable particulars of the charge from the informant. No request for particulars has been made by Mr Thomas despite that option being available to him. 
70.	In my opinion, a reasonable defendant would have understood the scope and nature of the charges against them without the time of the alleged offending being included in the charges. Whilst I acknowledge that a defendant may potentially have an ‘alibi defence’ as submitted by counsel for Mr Thomas, in which case he or she may not have the certificate of analysis, Mr Thomas has not suggested he has such a defence. Further, in the vast majority of cases involving offences of this nature, identify is not an issue and the accused has the certificate of analysis, and if identify is in issue, a defendant can request particulars from the informant to enable them to fully prepare their defence.
71.	I also note that Mr Thomas was given a certificate of analysis that stated the time the alcohol in his breath had been analysed before he was charged, although I am not persuaded that this alone would provide a basis for finding the charges valid if I were wrong about the other reasons why I consider the charge to be valid.
Failure to include the precise place of the alleged offending and the make, model and registration number of the motor vehicle
72.	In my view, my findings that charges 1 and 2 are valid despite there being no time provided in the charges apply equally to Mr Thomas’ submissions that the charges are invalid because there is no precise place referred to in the charges and the charges do not identify the make, model and registration number of the motor vehicle.
73.	Again, if Mr Thomas needed additional particulars in relation to the precise location of where he was alleged to have committed the offences or the make, model and registration number of the motor vehicle he was alleged to have been driving in order for him to fully prepare his defence, he could have asked the informant for this information. I also note that the certificate of analysis would have also provided Mr Thomas with information in relation to the specific location of the test before the charges were served on him. 
74.	In my opinion, a reasonable defendant would have understood the scope and nature of the charges against them without the time, precise location of the alleged offending and the make, model and registration number of the motor vehicle being included in the charges in circumstances where the charges contained the date of the alleged offending, the town where the offences were alleged to have occurred and an allegation the accused was driving at motor vehicle.
Failure to refer to s55(1) or (2)
75.	In relation to the defence submission that charges 1 and 2 were invalid because they failed to inform Mr Thomas whether he was required to undergo the evidentiary breath test under ss55(1) or 55(2) of the RSA, I accept that this is relevant to a potential defence and, as I have already acknowledged, a charge must provide the accused with the substance of the charge which he or she is called on to meet and ‘an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence.’ 
76.	However, again bearing in mind that it is not necessary for a charge to contain ‘all such material as a defendant may require, upon an application for particulars, for the preparation of the defence’ as long as it identifies the essential ingredients of the offence, in my view, in the context of this case, whether Mr Thomas was required to undergo the evidentiary breath test under s 55(1) or 55(2) of the RSA it is not an essential ingredient of offences under ss49(1)(b) and 49(1)(f) of the RSA.
77.	In addition, in Kypri, Nettle JA referred to the decision in Bell v Dawson, stating that this decision makes it clear that ‘s 49(1)(f) creates but one offence (of having a blood alcohol concentration greater than the prescribed percentage) albeit the offence may be committed in a number of different circumstances’. Accordingly, neither of the offences under s49(1)(b) and s49(1)(f) are ambulatory in nature.
78.	 For these reasons, I am not persuaded that it is necessary for the prosecution to identify which subsection of s55 of the RSA was the precursor to Mr Thomas being asked to undergo the evidentiary breath test in either of the charges or that the words in charge 1 ‘pursuant to section 55’ create uncertainty or confusion for a reasonable defendant reading the charge as a whole, or otherwise invalidates the charge.
Failure to refer to s55 in ‘ordinary language’
79.	In addition, whilst it may be preferable that charges referring to s55 do so in ordinary language, cl 2 of sch 1 only requires the ‘particulars’ of the offence to be set out in ordinary language. For the reasons set out above, despite s55 being specifically referred to in 49(1)(f) of the RSA, I am not persuaded that it is a particular or essential element of the offence and as such, cl 2 of sch 1 does not require the prosecution to set out s55 in ordinary language. Not am I persuaded that the failure to refer to s55 in ordinary language leads to uncertainty in respect of what is being alleged against Mr Thomas. 
80.	I also again note that Macauley J in Sheerin did not raise any concerns in relation to a similarly worded charge in respect of an offence under s49(1)(eb) of the RSA where the charge read:
The accused at Inverloch on 11/02/2018 within 3 hours of being the driver of a motor vehicle was required to provide a sample of oral fluid for testing pursuant to section 55E(2)(a) of the Road Safety Act 1986 and for the purpose he accompanied a police officer to a testing vehicle and did refuse to remain at the location prior to providing a sample in accordance with section 55E.
Can the charges be amended?
81.	The 12 month limitation for commencing summary criminal proceedings under s7 of the CPA expired on 14 April 2020.
82.	However, under s8(4) of the CPA, if a charge-sheet sufficiently discloses the nature of the offence, then even though the limitation period has expired, it may be amended provided that the amendment will not cause injustice to the accused and does not amount to commencement of a proceeding for a new offence.
83.	If I am wrong about any of Mr Thomas’ submissions in relation to what should have been included in charges 1 or 2, I agree with his submissions that the charges cannot be amended under s8(4) of the CPA because the charges would not meet the pre-condition that they sufficiently disclose the nature of the offences.
Summary
84.	In my view, applying the principles which arise from the cases, to which both parties referred, I have concluded that charges 1 and 2 are valid because they sufficiently particularise all of the elements of the offences under ss49(1)(b) and 49(1)(f) of the RSA and on any sensible interpretation the charges give Mr Thomas sufficient information to know that:
a.	In relation to charge 1, the prosecution is alleging that he drove a motor vehicle and within three hours after driving, he furnished a sample of his breath for analysis by a breath analysing instrument under s55 of the RSA and that the result of the analysis was that the alcohol in his breath was 0.111%, which is more than the prescribed concentration of alcohol, being 0.05 grams per 210 litres of exhaled air, and that this was not due solely to him having consumed alcohol after driving. 
b.	In relation to charge 2, the prosecution is alleging that he drove a motor vehicle while the alcohol in his breath was 0.111%, which is more than the prescribed concentration of alcohol, being 0.05 grams per 210 litres of exhaled air. 
85.	A reasonable defendant reading the charges would also understand what was being alleged by the prosecution.