Barnes v Hovington
[2015] TASSC 35
•12 August 2015
[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 14th 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 14th 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 New South Wales", and that the complaint was laid in error. Counsel for Mr Hovington told the magistrate that Mr Hovington normally lived in Tasmania but lost his licence in New South Wales "pursuant to the provisions of some New South Wales legislation".
After hearing from the parties, the magistrate refused the amendment. His Honour said:
"The amendment – it's clear that it would make the charge against the defendant of a different pith and substance in that it would be dealing with a different Act, s 13(1) of the Vehicle and Traffic Act 1999 would be the new charge, when he's presently charged with driving whilst disqualified under the Road Safety (Alcohol and Drugs) Act 1970, s 19A(1). It would require different evidence. [The prosecution] wouldn't be able to prove the case by presenting evidence of disqualification in Tasmania which is the matter that's at issue at the moment. The defendant would have to meet a case of showing that he was not disqualified in New South Wales, which he clearly wouldn't be able to meet at the moment, or was not on notice to meet, and obviously there would be significant prejudice to the defendant if I allowed the amendment because it would resurrect a charge that police presently can't go ahead with because of time limitations."
His Honour then acceded to a prosecution request for an adjournment. The notice to review was filed in the meantime. The notice contains a single ground of review to the effect that the magistrate erred in law in declining to amend the complaint to allege an offence under s 13(1) of the VTA.
The legislation
Section 19A(1) of the RSA provides as follows:
"(1) A person who, except in so far as he is authorized to do so by a licence issued pursuant to an order made under section 18 of the Vehicle and Traffic Act 1999, drives a motor vehicle while he is disqualified from driving under this Act is guilty of an offence.
Penalty:
In the case of —
(a)a first offence – a fine not exceeding 40 penalty units or imprisonment for a term not exceeding 6 months (or both) and a further period of disqualification (not exceeding 3 years) fixed by the court; and
(b)a second or subsequent offence – a fine not exceeding 80 penalty units or imprisonment for a term not exceeding 12 months (or both) and a further period of disqualification (not exceeding 5 years) fixed by the court."
Section 13 of the VTA relevantly provides as follows:
"(1) A person must not drive a motor vehicle on a public street in Tasmania if the person is disqualified from driving by —
(a) an Australian court under an Act of this or any other State or a Territory; or
(b) an automatic statutory penalty.
Penalty:
In the case of —
(a) a first offence —
(i)a fine not exceeding 40 penalty units or imprisonment for a term not exceeding 6 months, or both; and
(ii)a further period of disqualification, not exceeding 3 years, fixed by the court; and
(b) a second or subsequent offence —
(i)a fine not exceeding 80 penalty units or imprisonment for a term not exceeding 12 months, or both; and
(ii)a further period of disqualification, not exceeding 5 years, fixed by the court.
(2) Subsection (1) does not apply to —
(a) a person who drives a motor vehicle as authorised by a restricted driver licence; or
(b) a person who drives a motor vehicle while subject to a disqualification imposed under the Road Safety (Alcohol and Drugs) Act 1970."
As can be seen, s 13(2)(b) specifically excludes the operation of s 13(1) in relation to a person who drives a motor vehicle whilst disqualified under the RSA. I note that the penalty provisions in the two sections are identical.
The power to amend
Relevantly, s 31 of the Justices Act 1959 (Tas) is in the following terms:
"31 Irregularities and amendments
(1) An objection shall not be taken or allowed to a complaint in respect of —
(a) an alleged defect therein, in substance or in form; or
(b) a variance between it and the evidence in support thereof.
(2) Notwithstanding the provisions of subsection (1), where —
(a) a complaint fails to disclose an offence or matter of complaint; or
(b) the defendant appears to have been prejudiced by any defect or variance referred to in that subsection —
the justices shall, unless the complaint is amended as provided in subsection (3), dismiss the complaint.
(3) If it appears to the justices that the complaint —
(a) fails to disclose an offence or matter of complaint, or is otherwise defective; and
(b) ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect —
the justices may amend the complaint upon such terms as may be just.
…".
The predecessor to that section was discussed by Burbury CJ in Wickham v Cole [1957] Tas SR 111. At 115, his Honour said that the purpose of the provision was to avoid justice being defeated and the law being brought into contempt through magistrates and justices being required to dismiss charges against defendants by reason of unmeritorious objections to the precise form in which those charges are laid. His Honour continued:
"But these procedural amendments clearly cannot be construed so as to justify any departure from what is a fundamental rule of the administration of criminal justice; that a man may only be convicted if the evidence establishes beyond reasonable doubt that he is guilty of the specific charge laid against him. He cannot be convicted upon some other charge which may be proved by the evidence. The charge against him must clearly inform him of the legal nature of the offence and the facts basic to it. He goes to court prepared to meet that charge as so pleaded. An amendment may only be granted so long as he is given adequate opportunity to meet the new material."
As to the exercise of the discretion, at 118 his Honour observed:
"But of course the discretion to amend must be exercised judicially. An amendment of substance either to the legal nature of the offence or to the material facts relied upon as the foundation to the charge could not properly be allowed without giving the defendant full opportunity to answer the newly framed charge. In the case of a material departure from the charge as laid no amendment could be entertained at a stage in the proceedings which would be too late to enable the defendant fairly to meet the amended charge. It is difficult to imagine a case where the interests of justice would require a fundamental amendment to be made except at the commencement of the proceedings. A prosecutor must be alert to apply for an amendment as soon as variation between the evidence and the charge as laid appears. He should ordinarily be aware of such a variation and apply to amend the complaint at the commencement of the proceedings."
The parties' submissions
In the hearing before the magistrate, the prosecutor relied on Malahoff v White (1991) 14 MVR 450, [1991] TASSC 60. On the hearing of the motion to review, the applicant also exclusively relied on the case. The facts are almost identical. In Malahoff, before the hearing of a complaint, a magistrate ordered the amendment of the charge as drawn. The original charge was that the defendant drove whilst disqualified in breach of s 37(1) of the Traffic Act 1925 (Tas). The amendment sought, and granted, was to allege a breach of s 19A(1) of the RSA in lieu of the Traffic Act and by alleging in the particulars that the disqualification had been imposed under the former Act rather than the latter.
Section 37(1) of the Traffic Act was in similar terms to s 13(1) of the VTA. It provided that no person shall drive a motor vehicle on a public street whilst he is disqualified "under this or any other Act". It did not, as does s 13(1) of the VTA, contain a reference to an Act of any other State or Territory. However, s 37(2) of the Traffic Act was of like effect to s 13(2) of the VTA, in that it provided that the section did not apply in respect of a disqualification for holding or obtaining a licence imposed under the RSA.
At 452-453, Cox J (as he then was) referred to the decision in Crafter v McKeough [1943] SASR 371 in which Napier CJ said, at 375, "that a person charged with one offence cannot be convicted of an entirely different offence; but, nevertheless, the complaint can be amended to charge a 'different offence', in the sense of an offence which is differently described or stated, so long as the pith and substance of the charge remains constant". Cox J went on to refer to Schultz v Pettitt (1980) 25 SASR 427 in which his Honour's namesake said at 433:
"A complaint may not be amended, under [the equivalent provision] or any other power, if the result would be to convert a bad complaint into a good one, or to charge the defendant with a different offence. There is a sense, of course, in which to vary the allegation at all is to charge a different offence, but the cases show that what is meant here is a change in the essential elements of the charge – a change in its 'quality or effect' (Williams v Wight [1943] SASR 301-304), or in its 'pith and substance': (Crafter v McKeogh) [above]). Often a question of degree will be involved (Warner v Sunnybrook Ice–Cream Pty Ltd [1968] VR 102 at p105)."
In Malahoff, Cox J held that the offence charged in the amended complaint was of the same pith and substance as that in the original complaint. He said that the actus reus was the same act of driving on the same occasion, coupled with the fact of disqualification, pursuant to court order. He added that the fact that the disqualification was imposed under different Acts, or that the offence might attract different sanctions, did not affect any change in the quality or effect of the essential elements of the charge. It is that aspect of the decision of course, upon which the applicant relies.
His Honour then considered the impact of the fact that the amendment was being made outside the six-month time limit for the making of the complaint as set by s 26 of the Justices Act. At 454, his Honour said that he could see no warrant for the assertion that a valid complaint could not be amended after the limitation had expired if this could be done without injustice. He referred to R v Newcastle–upon–Tyne Justices, Ex parte John Bryce (Contractors) Ltd [1976] 1 WLR 517. His Honour set out two paragraphs of the judgment of May J at 520. (Lord Widgery CJ and Park J agreed with May J). I will only repeat the first of those paragraphs:
"In my view the six months' limitation provision in the 1952 Act is to ensure that summary offences are charged and tried as soon as reasonably possible after their alleged commission, so that the recollection of witnesses may still be reasonably clear, and so that there shall be no unnecessary delay in the disposal by the magistrates' courts throughout the country of the summary offences brought before them to be tried. It is in this context that their power to permit the amendment of an information, referred to by Lord Widgery CJ, is to be exercised; it must be exercised judicially; it must be exercised so as to do justice between the parties. But where it can be so exercised, where an information can be amended, even to allege a different offence, so that no injustice is done to the defence, I for my part can see no reason why the justices should not so exercise it even though, as I say, the amendment is allowed after the expiry of the six months' period from the commission of the alleged offence."
The applicant submits that the amendment was sought at an early opportunity before the hearing date, and that accordingly no prejudice would have been cause to the respondent.
The respondent highlights the fact that the decision of the magistrate was a discretionary one. The respondent says that the magistrate took into account all the relevant factors, and that the decision is not plainly wrong. As to Malahoff v White, the respondent does not submit that Cox J applied the wrong principle, and that I should not follow it because it is plainly wrong. Rather, the respondent says that applying the 'pith and substance' test in this case, the outcome is different. That is, this case is distinguishable on its facts.
Discussion
At the outset, I observe that this category of case should be distinguished from that in which the amendment is sought in respect of a charge which does not disclose an offence known to the law, or where there is a similar defect such as a charge under repealed legislation which has no application. See for instance Tregilgas v Howie [1926] SASR 122, Robbins v Horton (1980) 3 NTR 1, Starling v Ostrowski (2001) 24 WAR 61, and as an example of the latter type of case, Flanagan v Remick (2001) 127 A Crim R 534.
A useful summary of the approach to this type of case is contained in the judgment of Underwood J (as he then was) in Olver v Dix [1999] TASSC 1. His Honour was dealing with a permitted amendment of a charge under the Fisheries Management Act 1991 (Cth). The amendment had the effect of changing the date of the offence to six days later, changing the status of the defendant from a permit holder to an agent, and adding to two averment clauses. The change of status meant that the charge was laid under a different paragraph of the same subsection in the particular section of the Act. His Honour allowed a motion to review the order of amendment.
At par [13], his Honour described the essential issue as whether the amendment to plead the conduct prescribed by one paragraph in lieu of conduct prescribed by the other, had the effect of charging a new offence and, if so, whether the order of amendment thereby caused an injustice to the applicant. Turning to the law, his Honour said:
"14 The law reports are replete with cases dealing with this issue. Fundamental to it … is the proposition that an order for amendment is not the institution of any proceedings but a step in proceedings instituted by the original complaint. See Wakeley v R [1920] 1 KB 688; McLean v Case & Deignan Pty Ltd (1961) WN(NSW) 476; R v Newcastle-Upon-Tyne Justices; Ex parte John Bryce (Contractors) Ltd [1976] 1 WLR 517, Hayes v Wilson (1984) 10 A Crim R 409. It follows that except in unusual circumstances, it would work an injustice to permit an amendment which has the effect of creating a new charge which would be defeated by a limitation provision if it had been charged by a fresh complaint made at the time of the application to amend. This fundamental proposition has been well established in the civil law since Weldon v Neal (1887) 19 QBD 394. It applies with equal force to the criminal law. See Linehan v Australian Public Service Association (Fourth Division Officers) (1982) 66 FLR 90, in which case Fitzgerald J referred to the impermissibility of adding 'essential allegations'. But what are essential allegations? Is the alteration of the character of the applicant from the holder of a licence to that of a person acting on behalf of the holder of a licence adding or altering an essential allegation?
15 The test for determining whether an amendment creates a new offence differs slightly from jurisdiction to jurisdiction, although all 'tests' have a common basis. In South Australia, it seems generally accepted that provided the 'pith and substance' of the charge remains the same, the amendment should be permitted. See, eg, Schultz v Pettitt (1980) 25 SASR 427; Crafter v McKeough [1943] SASR 371; Surman v S A Police (1996) 65 SASR 421.
16 In Victoria and Western Australia, the 'common origin' test seems to have found favour. See Kennett v Holt [1974] VR 644; Mitchell v Myers (1955) 57 WALR 49.
17 In Queensland, a similar approach has been taken by the application of the 'cognate test'. See Hayes v Wilson (supra). In the Northern Territory, the 'pith and substance', or at least the 'substance' test appears to have been used. See Robbins v Horton (1980) 3 NTR 1.
…
19 There is little profit to be gained from examining the facts of the many cases which have dealt with this issue, for as Bollen J observed in Surman at 427, … whatever 'test' is applied, whether the proposed amended charge is different from or cognate, or I might add, not of the same pith and substance as the original charge, is always a matter of degree. Whether the proposed amendment refers to the same or a different section of a statute is relevant to, but not determinative of, the issue. Similarly, whether the proposed amendment adds details or an essential element is also relevant to, but not necessarily determinative of, the issue. It is, as I say, a question of degree in each case." [My emphasis]
After examining the elements which went to make up each of the two different offences under consideration, his Honour continued at [20]:
"At the risk of being criticised for not taking my own advice, I venture to refer briefly to the facts of Fred Wakefield Pty Ltd v Dowd (1979) 20 SASR 328 because they illuminate the correct approach to the issue on this motion. In that case, a complaint purporting to charge an offence under a particular municipal by-law alleged that the plaintiff had, with the 'licence' of the council, painted a sign on a building. The by-law in question forbade the painting of signs on buildings except with the 'permission' of the council. It was held in that case that an amendment to substitute 'permission' for 'licence' was an alteration to the 'pith and substance' of the offence charged and should be refused because its allowance would deprive the appellant of an immunity it would otherwise have had by virtue of a limitation provision."
In the case of Surman v S A Police to which his Honour referred, a magistrate had allowed an amendment to a complaint of attempting to put a vehicle in motion while the defendant had alcohol present in his blood greater than the prescribed concentration, so that it alleged an act of actual driving. The application was made outside the time limit. Bollen J considered the various tests adopted in Australia, although accepting the one adopted in South Australia was the 'pith and substance' test. The magistrate had said that the core essential elements of the offences were the same. At 424, Bollen J disagreed, saying that the original charge had at its core the idea of "attempting to put in motion", whilst the amended count had at its core the idea of "actually driving". His Honour said they were different offences. (The emphasis is mine.)
As an examination of the cases shows, no injustice is done where the amendment results in a defendant facing a charge which is the same in pith and substance to that originally faced, or is a cognate one; that is, allied in nature or akin in quality. Injustice or unfairness may nonetheless arise, depending on the stage of the proceedings at which the application to amend is made.
Resolution
It is true, of course, that the power to amend under s 31 of the Justices Act is a discretionary one, but the exercise of that discretion in this case called for the making of a legal judgment. That judgment related to the question of degree in the relationship between the existing charge to that sought to be substituted. Was the new one the same in 'pith and substance', or a cognate one? In my view, the answer is in the affirmative on either approach. I would adopt the same approach to the resolution of this issue as Cox J did in Malahoff v White. I accept that in this case it was unclear whether or not the disqualification was by court order, but I do not see that as material. With respect, the magistrate was wrong to say that the two offences were different in pith and substance so as not to justify the amendment 'out of time'.
The common elements of the two offences under the separate Acts are that:
· the person
· drove a motor vehicle
· on a public street in Tasmania
· while he or she was disqualified from driving.
For the offence under s 19A(1) of the RSA, the disqualification has to be under that Act. For the offence under s 13(1) of the VTA, the disqualification has to be within the meaning of that subsection. Because of s 13(2)(a) of the VTA, for these purposes disqualification under the RSA does not amount to disqualification within the meaning of the VTA.
In this case, the only thing which was to change by the amendment was the alleged legal basis of the disqualification. Whether or not the respondent was disqualified is a matter of fact. That allegation would remain after the amendment, and precisely the same act of driving was to be alleged. The application to amend the complaint was heard as a discrete issue, and well in advance of the proposed hearing date.
The motion should be allowed. I order that the complaint be amended in the terms of the application made to the magistrate. I order that the matter be remitted to a magistrate for hearing. By so ordering, I do not intend to exclude the particular magistrate from hearing the matter, but it might be administratively more convenient if I make the order general in its terms.
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