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Sunday, 11 March 2012

DPP v Kirtley [2012] VSC 78: the two essential elements of speeding

There are two essential ingredients to a charge of speeding in Victoria (and, therefore, probably across Australia):

    (1) the driving of a motor vehicle; and (2) in excess of the speed limit.


More information might be nice, but it's not essential. There are more things that the prosecution are required to prove an offence under Road Rule 20, obviously. But not everything that has to be proved needs to be alleged in the charge, as the Supreme Court found in Ciorra v Cole (2004) 150 A Crim RJ 189 [at 80].

In DPP v Kirtley [2012] VSC 78 the respondent successfully defended a speeding charge in the Magistrates' Court. His counsel persuaded the Court that the charge information disclosed no offence at law.

The charge read,

The defendant at Rupanyup on 15/06/09 being the driver of vehicle on the length named Wimmera Highway did drive at speed over the speed limit applying for the length of road to which a speed limit sign of 100km/h applied between Marnoo and Rupanyup. Detected speed 158km/h. Alleged speed 156km/h kph.


Road Rule 20 says that,

(1) A driver must not drive at a speed over the speed-limit applying to the driver for the length of road where the driver is driving.


It was successfully argued at first instance that the charge information was defective because it failed to specify that the speed limit applied to the driver, rather than the road. Forrest J found that the information did disclose an offence, and returned the charge to the Magistrates' Court to be dealt with according to law.

Forrest J at 17,

It follows that in determining whether the charge contained the essential ingredients of the offence, it is necessary to look at its contents from the perspective of a reasonable defendant in the position of Mr Kirtley.

Reduced to its basics, the debate between the Director and the Respondent turned upon what were the essential elements of an offence under r 20 and whether that information was conveyed to Mr Kirtley so that he understood the charge he had to meet.

Senior Counsel for the Director contended that there were two essential ingredients of a charge laid under r 20: namely the driving of a car and exceeding the speed limit. He argued that as long as these two matters were identified in the charge then that, with the details of the alleged offending, provided sufficient information to identify the substance of the charge. He said that charge as laid did all these things and the reference to the speed limit being applicable to the reading did not obscure the fundamental elements of the charge. Accordingly, so the argument concluded, the charge, although not identifying in terms that the speed limit was applicable to the driver, was nevertheless good in law.

...

In my opinion, the submission made on behalf of the Director – that the two essential ingredients to a charge under r 20 are (a) the driving of a motor vehicle (b) in excess of the speed limit - should be accepted.


It's necessary for courts considering the sufficiency of charge information to strive conscientiously to read them in a sense that gives the meaning that the draughtsman intended: Smith v Van Maanen (1991) 14 MVR 365. Notwithstanding the rule of strictness required of prosecutors in drafting criminal charges, a charge should be interpreted in the manner a reasonable defendant would understand it, giving reasonable consideration to the words of the charge, in their context: DPP Reference No 2 of 2001 [2001] VSCA 114.

Though not necessary to decide the case, Forrest J also found that, had the charge been defective, it was still capable of being remedied by amendment, applying DPP v Kypri (2011) 207 A Crim R 566.

In that case the Court of Appeal said [at 24] that a defective charge is capable of amendment, even outside the statutory time for the laying of a charge, provided the, 'true nature of the offence is apparent from the face of the charge, and the defendant has not been misled or otherwise prejudiced by the omission'.

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