[CRIMINAL DIVISION ] Case No. Y CONSTABLE AMY VIRGONA --- DANDENONG REASONS FOR DECISON

Transcription

1 !Undefined Bookmark, I IN THE MAGISTRATES COURT OF VICTORIA AT DANDENONG [CRIMINAL DIVISION ] Case No. Y CONSTABLE AMY VIRGONA Informant V KEITH OURANIOS Defendant --- MAGISTRATE: CURE WHERE HELD: DANDENONG DATE OF HEARING: 29 APRIL 2010 & 18 MAY 2010 DATE OF DECISION: 18 MAY 2010 CASE MAY BE CITED AS: VIRGONA v OURANIOS REASONS FOR DECISON Use of mobile phone under rule Road Rules - whether omission of words in charge render charge nullity. Power of Amendment under section 50(1) Magistrates Court Act. --- APPEARANCES: Solicitors For the Defendant Mr Walsh-Buckley Livaditis & Co For the Informant Senior Constable Chiodo Prosecutions Dandenong

2 1. Keith Ouranios was charged under Road Rule for using a mobile phone while driving on 26 March After being pulled over by the Informant on that day he was issued with a traffic infringement notice. He elected to contest the charge in Court. 2. The facts of the case are admitted, namely that the defendant was driving along Cheltenham Road in Keysborough and Constable Virgona observed him with his mobile phone in his right hand up to his ear. He was alongside Constable Virgona who signalled him to pull over to the side of the road. He admitted having used his mobile phone saying that he boss had rung him and he picked it up for a few seconds. 3. The charge filed on 10 th August 2009 alleges that at Keysborough on 26 March 2009, being the driver of a vehicle that was moving on a road named Cheltenham Road, did use a hand-held mobile phone. 4. The matter was returnable at the Dandenong Magistrates Court on 26 October The Court received a written request from his Solicitor to adjourn the matter for 4 weeks so they could obtain instructions. On 23 November 2009 the matter was booked in for a 2 hour contest listed on 29 April At this court before me on 29 April 2010 Mr Walsh-Buckley appeared, under protest and argued that the charge must be struckout because it is fundamentally defective. He submits that the particularisation omits the fundamental element, that the driver commits the offence by holding it in his hand. 1 DECISION

3 6. Mr Walsh-Buckley for the defendant provided written submissions which are attached. He submits that the charge omits a fundamental element of the offence and is therefore in breach of section 27(1) of the Magistrates Court Act 1989 because the offence must be described in the words of the provision or similar words. That omission, he summits is mandatory and not a matter of fairness Mr Walsh-Buckley further submits that the omission breaches the common law principle that the fundamental elements of the offence must be pleaded and breaches the Charter of Human rights and Responsibilities Act 2006 which guarantees that a person charged will be informed promptly and in detail of the nature and reason for the charge in a language or, if necessary, a type of communication that he or she speaks or understands. (Section 25(2)(a)). Finally he submits that the omission offends Form 7 of the Magistrates Court Criminal Procedure Rules Order which require details of the offence and it is submitted that there is a discretionary power to direct the proceeding void. 8. The prosecution submits that there is sufficient particularity in the charge for the accused to know what is alleged against him. The Prosecutor also submitted that the wording is sufficient insofar as the phone becomes a hand-held mobile phone when one holds it in a hand as distinct from a mobile phone. The Prosecutor invites the court to draw no distinction between a hand-held mobile phone and a mobile phone that is being held in the hand. 9. The term hand-held mobile phone was found in rule 300(1) before its amendment commencing 18 December The earlier provision said: 2 DECISION

4 the driver of a vehicle (except an emergency vehicle of a police vehicle) must not use a hand-held mobile phone while the vehicle is moving, or is stationary but not parked, unless the driver is exempt from this rule under subrule (3) 10. That rule was amended by Item 31 of Schedule 4 by the Road Safety (Road Rules) Regulations 1999 commencing on 18 December 2007 and applicable in this case. The amended rule says: (1) The driver of a vehicle (except an emergency vehicle of police vehicle), must not while the vehicle is moving or is stationary but not parked, unless exempt from this rule under subrule (3) - (a) if the driver is a learner driver or the holder of a P1 probationary driver licence, use a mobile phone; (b) in any other case, use a mobile phone that the driver is holding in his or her hand. 8. The term hand-held mobile phone had been used in a similar provision in South Australian considered in Burns v Police 2. That case examines the meaning of hand-held mobile phone where the issue was whether or not a person pushing a button on a phone, not in his hand, is using the phone. It was argued by Burns that he was not using a hand-held mobile phone because he was only pushing a button whilst the phone was not in his hand. That argument was rejected. In finding that use included pushing a button while the phone was in the centre console of the car, Justice Gray discussed the meaning of the term hand-held mobile phone. He held that the term hand-held operates as an adjective to qualify the noun, mobile phone rather than an adverb qualifying the verb use. 1 See Alwer v McLean (2000) 32 MVR [2007] SASR DECISION

5 11. Based upon that analysis, which I agree with, I reject the Prosecution submission that the term hand-held mobile phone is a qualification that implies the manner of its use. 12. If one examines rule 300 there are two separate offences. The first is where a P1 driver must not use a mobile phone (rule 300.1(a)) and in any other case, that is where the driver is not a P1 driver, the prohibited use is to hold a phone in his or her hand, (rule 300.1(b)). 13. The defendant in this case was not a P1 driver and his breach of road rule 300 is by holding the phone in his hand. I agree that the pleading should have contained the words, by holding it in his hand rather than the use of the term hand-held mobile phone. The question for me then is whether that omission renders the charge a nullity as argued by the defendant or is this a charge capable of amendment? 14. The power to amend is conferred by section 50(1) of the Magistrates Court Act 1989 which provides: On the hearing of a proceeding the Court must not allow an objection to a charge, summons or warrant on account of any defect or error in it in substance or in form or for any variance between it and the evidence presented in the proceeding but the Court may amend the charge, summons or warrant to correct the defect or error. 15. Mr Walsh-Buckley argued that because the charge was out of time the power to amend is not open. It is clear that the authorities permit amendment under section 4 DECISION

6 50 outside the limitation period where the offence remains the same. In Ciorra v Cole Redlich J says: The authorities extensively referred to in Nash indicate that where a charge sufficiently discloses the offence and where no injustice will be done to the defendant through amendment and the matter proceeding, the Court s obligation is to hear and determine the matter The Prosecutor argued, and I accept that the charge as drafted discloses the offence sufficiently and in all the circumstances. 17. Even if it could be said that the amendment created a different charge, I am of the view that the various authorities that deal with the power to amend under section 50 could be exercised in this case in all the circumstances, notwithstanding the fact that it is outside the 12 months. In an often quoted passage from Dixon J in Broome v Chenoweth: Whether an information disclosing no offence can be amended has been the subject of some difference of judicial opinion. probably it is necessary to deal with the question as a matter of degree and not by a firmly logical distinction. An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment if justice is not to be defeated. By contrast, at the other extreme, an information may contain nothing which can identify the charge with any offence known to the law. Such a case may not 3 [2009] VSC 416 at para DECISION

7 be covered by the power of amendment On the return date I clarified with the Prosecutor that an application was being made to amend the charge. It was anticipated in submissions by Mr Walsh-Buckley but I did not make a note of the formal application by the Prosecutor. Accordingly I direct that the words by holding it in his hand be inserted and the words hand held be deleted. The section provision should be amended to show rule 300.1(b). 19. Accordingly I find the charge proven. I intend to reinstate the original fine. The usual loss of demerit points will follow. 4 (1946) 73 CLR 583 at DECISION