Director of Public Prosecutions (NSW) v Charheh [2017] NSWSC 1061

Director of Public Prosecutions (NSW) v Charheh [2017] NSWSC 1061 · Read the judgment on AustLII

Catchwords: Particulars of offences – Essential elements of offence – Effect of inaccurate date on guilt

The Supreme Court has emphasised that, generally, an inaccurate allegation about the date or time on which an offence occurred will not affect the outcome in a prosecution.

The defendant was dealt with in the Local Court for taking and driving a truck without the owner’s consent, and driving whilst disqualified. The Court Attendance Notices (‘CAN’) particularised the take and drive offence as having occurred ‘between 4.00pm on 27/03/2015 and 12.30pm on 30/03/2015 at Belmore’ and the disqualified driving as happening ‘between 5.45pm and 6.00pm on 30/03/2015 at Belmore’. The defendant did not give evidence (he did say some things to the police at the scene which, he was no doubt disappointed to discover, were patently inconsistent with CCTV – and therefore incapable of being accepted). The uncontested evidence was that the truck in question was taken without the owner’s permission some time between 4pm on 27 March 2015 and 12pm on 30 March 2015, and the co-accused had been given a lift in the truck (with the defendant driving) between 5:24pm and 5:44pm on 30 March 2015. The Local Court Magistrate dismissed the charges on the basis that neither offence occurred during the time particularised in the respective CAN.

The DPP appealed the dismissal on the basis that the Magistrate was not empowered to dismiss the charge, and the defendant filed a notice of contention to the effect that the evidence was incapable of establishing the ‘taking’ by the defendant (this summary only deals with the question of the particulars – the notice of contention was also dismissed).

Rothman J, sitting alone, upheld the appeal, on the basis that the evidence established the elements of the offence, and the Magistrate was required to find guilt; the discrepancy as to time was not an essential one.

A CAN is treated as an indictment (at [36]), and s16 of the Criminal Procedure Act provides that an indictment is not rendered insufficient, void, erroneous or defective if it omits a time when the offence was committed, or the states a wrong time, unless time is an essential ingredient of the offence (at [34]-[35]). Time can be rendered essential by the manner in which the proceedings were conducted – for example, if the accused relies on an alibi for a particular time (at [38]). Sometimes time will be an essential element of the offence provision itself – for example where the victim must be of a particular age, or the offence requires a particular result within a prescribed time. This was not such a case (at [39]). Even if the time of the offence time were an essential ingredient, or the timing in the charge denied the accused a reasonably opportunity to present a defence or test the prosecution case, the court would be required to grant an amendment to the charge, or an adjournment, depending on the circumstances (at [40] – although it is unstated, it appears that Rothman J intended this otherwise-unqualified observation to relate to the particular circumstances of this case). The mere fact that, on the evidence, the offence occurred before or after the particularised time does not render the charge insufficient and does not require or allow the dismissal of the charges on the basis that the evidence does not establish the charges (at [45]).