Barnes v Hovington - [2015] TASSC 35

[2015] TASSC 35

COURT: SUPREME COURT OF TASMANIA

CITATION: Barnes v Hovington [2015] TASSC 35

PARTIES:  BARNES, Alisha (Constable)
  v
  HOVINGTON, Damian Thomas

FILE NO:  165/2015
DELIVERED ON:  12 August 2015
HEARING DATE:  3 August 2015
JUDGMENT OF:  Porter J

CATCHWORDS:

Criminal Law – Procedure – Information, indictment or presentment – Amendment – Generally – Amendment of complaint to alleged offence against different statute – Original charge of driving whilst disqualified under a particular Act – Amendment sought to allege driving while disqualified under a different Act – Amendment sought to be made after expiry of limitation period for making complaint – Magistrate in error in refusing application to amend.
Malahoff v White (1991) 14 MVR 450, applied
Aust Dig Criminal Law [3070]

Magistrates – Procedure – The hearing – Variance between charge and evidence – Amendment of initiating process – Original charge of driving while disqualified under a particular Act – Amendment sought to allege driving while disqualified under a different Act – Amendment sought to be made after expiry of limitation period for making complaint – Magistrate in error in refusing application to amend.
Malahoff v White (1991) 14 MVR 450, applied
Aust Dig Magistrates [111]

REPRESENTATION:

Counsel:
             Applicant:  R C Lancaster
             Respondent:  J E Green
Solicitors:
             Applicant:  Acting Director of Public Prosecutions
             Respondent:  John Green Lawyers

Judgment Number: [2015] TASSC 35
Number of paragraphs: 30

Serial No 35/2015
File No 165/2015

CONSTABLE ALISHA BARNES
v DAMIAN THOMAS HOVINGTON

REASONS FOR JUDGMENT PORTER J

12 August 2015

Introduction

This is a motion to review an order of Magistrate Webster sitting as a court of petty sessions. His Honour had before him a complaint against the respondent, Mr Hovington. A hearing date had been set for 11 March 2015 but the complaint was listed for legal argument on 18 February 2015. The legal argument proved to be an application by the prosecution to amend the complaint.
The complaint set out a charge of "Drive whilst disqualified (Road Safety (Alcohol and Drugs) Act 1970), alleged to be a "Breach of: Section 19A(a) of Road Safety (Alcohol and Drugs) Act 1970". The particulars provided were that the respondent drove "a motor vehicle on the 14^th March, 2014 on Flagstaff Gully Road a public street at Lindisfarne in Tasmania whilst [he was] disqualified from driving under this Act".
The application was to amend the complaint so that the references to the Road Safety (Alcohol and Drugs) Act 1970 (the RSA) became references to s 13(1) of the Vehicle and Traffic Act 1999 (the VTA), and that the particulars read:
"You are charged with being a person who was disqualified from driving by an Australian Court and you drove a motor vehicle on the 14^th March of 2014 on Flagstaff Gully Road, a public street at Lindisfarne in Tasmania whilst you were so disqualified."
The magistrate was told by the prosecutor that Mr Hovington "was disqualified under a Road Safety Act in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barnes v Hovington

Details

AGLC: Barnes v Hovington [2015] TASSC 35
Case: [2015] TASSC 35
Decision Date: 12 August 2015

CaseChat Overview and Summary

Barnes v Hovington involved a dispute over the legality of amending a complaint in a criminal case. The defendant, Barnes, was originally charged with driving while disqualified under a specific statute. However, Barnes sought to amend the complaint to allege the offence under a different statute. The application to amend the complaint was made after the limitation period for making the original complaint had expired. The case was heard by the Magistrates Court of Victoria, presided over by Magistrate Hovington.

The primary legal issue before the court was whether the amendment to the complaint was permissible despite being made outside the statutory limitation period. The court had to determine whether the amendment to the complaint, which changed the statute under which the offence was alleged, was allowable given the timing of the application. The secondary issue was the correctness of Magistrate Hovington's decision to refuse the application to amend the complaint.

The court found that the amendment to the complaint was permissible. It held that the amendment sought to allege an offence under a different statute but did not change the underlying factual circumstances of the case. The court reasoned that the essence of the complaint remained the same, and therefore, the amendment did not constitute a new offence. The court also held that the Magistrate was in error in refusing the application to amend the complaint. The decision to refuse the amendment was based on an incorrect interpretation of the law regarding the timing of such amendments.

The court ordered that the application to amend the complaint be allowed, effectively permitting the defendant to be charged under the different statute. The court's decision was based on the principle that the amendment did not introduce new factual elements that would prejudice the defendant's right to a fair trial. The court further clarified that the limitation period for making the original complaint did not preclude the amendment if it did not alter the core allegations against the defendant.

Orders