Busby v Burrow
[2012] WASC 58
•21 FEBRUARY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: BUSBY -v- BURROW [2012] WASC 58
CORAM: EM HEENAN J
HEARD: 11 NOVEMBER 2011
DELIVERED : 21 FEBRUARY 2012
FILE NO/S: SJA 1079 of 2011
BETWEEN: BRET BUSBY
Appellant
AND
DAVID ALAN BURROW
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE S R MALLEY
File No :AR 9873 of 2010
Catchwords:
Application for leave to appeal - Appeal against conviction - Breach of Road Traffic Code reg 50(3) - Failing to give way when proceeding from a Stop sign - Conviction after trial - Fine - Amendment to prosecution notice by alteration of the date of the alleged offence made two months before trial - Significance of amendment - Amendment without applicant having opportunity to oppose amendment - Demand for provision of a copy of the prosecution notice as amended wrongly refused - Prosecution notice as amended alleging an offence not established by the evidence - No further application to amend prosecution notice - Conviction for an offence at variance with the allegations in the prosecution notice - Error of law - Miscarriage of justice - Scope of proposed grounds of appeal
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Road Traffic Code, reg 50(3)
Result:
Leave to appeal granted
Conviction quashed
Fine and penalty (demerit points) set aside
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms M J Paterson
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Ayles v The Queen [2008] HCA 6; (2008) 232 CLR 410
Bauerhuit v Dean [2011] WASC 253
Calabria v The Queen [1983] HCA 33; (1983) 151 CLR 670
CB v The State of Western Australia [2006] WASCA 227
Corporate Affairs Commission v Bain (1991) 5 ACSR 97; (1991) 55 A Crim R 73
Crothers v Sheil (1933) 49 CLR 399
Demetriou v DPP (2000) 32 MVR 45; [2000] NSWSC 1060
Felix v Smerdon (1944) 18 ALJ 30
Gipp v The Queen (1998) 194 CLR 106
Go v The Queen (1990) 73 NTR 1; (1990) 102 FLR 299
John Holland Pty Ltd v Industrial Court of NSW [2011] HCATrans 95
Johnson v Miller (1937) 59 CLR 467
Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531
Lawless v The Queen (1979) 142 CLR 659
Mahmood v The State of Western Australia (No 2) [2008] WASCA 259
McKeagg v The Queen [2006] WASCA 26; 162 A Crim R 51
Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129; 84 FCR 438
Mitchell v Myers (1955) 57 WALR 49
Parmeter v Proctor (1948) 60 WN (NSW) 48; (1948) 22 ALJ 525
Parsons Brinckerhoff (Aust) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338
Paulger v Hall [2003] 2 Qd R 294
R v Bonner [1974] Crim LR 479
R v CAE [2008] QCA 177
R v Chin (1985) 157 CLR 671
R v Dossi (1918) 13 Cr App R 158
R v Fahey [2002] 1 Qd R 391; (2001) 121 A Crim R 390; [2001] QCA 82
R v Martin [1962] 1 QB 221, 227; (1962) 45 Cr App R 199
R v Mulroy (1940) 57 WN (NSW) 159
R v O'Brien [1981] WAR 305
R v Pfitzner (1976) 15 SASR 171
R v Radley (1973) 58 Cr App R 394
R v Teong Sun Chuah [1991] Crim LR 463
R v Tirado (1974) 59 Cr App R 80
R v West [1948] 1 KB 709; (1948) 32 Cr App R 152
Robinson v Murweh Shire Council; Ex parte Robinson [1984] 2 Qd R 349
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Simpson v Department of Environment and Conservation [2011] WASC 206
Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603
Starling v Ostrowski [2001] WASCA 74; (2001) 24 WAR 61
Tobin v Dodd [2004] WASCA 288
EM HEENAN J: Mr Bret Busby is applying for leave to appeal from a conviction in the Magistrates Court at Armadale after trial on 6 July 2011 for an offence of failing to give way when proceeding from a Stop sign, contrary to reg 50(3) of the Road Traffic Code. He was fined $250 and ordered to pay costs which were fixed at $119.20 and he thereby incurred three Demerit Points.
Mr Busby contends that the original charge was invalid and that a subsequent amendment made to the charge before the trial was ineffective. It is necessary, therefore, to notice precisely the details of the charge as originally laid and as later amended.
By a prosecution notice dated 22 September 2010, the respondent, a police officer, charged Mr Busby with an offence that on 14 July 2010, at Oakford, he failed to give way when proceeding from a Stop sign, in that he drove a vehicle, registered number 1DET-705, on a road, namely Nicholson Road, where a Stop sign was erected to face him at the approach to its intersection with Rowley Road and having proceeded therefrom, failed to give way to a vehicle on the intersecting road contrary to reg 50(3) of the Road Traffic Code 2000.
It emerged that the charge as laid alleged the commission of an offence on the wrong date. It was then later amended by order of the magistrate at a mention on 3 May 2011. From then on, the charge alleged that the offence had been committed on 13 June 2010. That was how it stood at the trial before his Honour Magistrate Malley on 6 July 2011, which resulted in the conviction.
By an appeal notice filed 4 August 2011 (one day out of time) Mr Busby has sought leave to appeal against this conviction on two grounds, namely:
1.The decision contained errors of law and fact.
2.The decision involved a miscarriage of justice.
Because his application was late, Mr Busby has also sought an extension of time. The respondent consented to an extension of time and, on 29 August 2011, Hall J granted that extension. His Honour also then directed that the application for leave to appeal should be heard at the same time as the appeal and gave other directions in relation to the materials to be prepared and filed for the hearing.
Among the directions given by Hall J on 29 August 2011 was a direction, in common form, that the parties must comply with Consolidated Practice Directions published 22 January 2009, pt 2, entitled 'Submissions and Authorities'. These required that written submissions and lists of authorities to be relied upon should be filed and served not less than four clear working days before the date fixed for the hearing. The date for this hearing was 11 November 2011. No submissions were filed by the applicant until 9 November 2011. Before then, however, written submissions dated 14 September 2011 had been filed for the respondent. These advanced, with justification, the contention that the proposed grounds of appeal had not been stated with sufficient particularity to permit the respondent properly to respond and that, consequently, the respondent was addressing what was taken to be the substance of the applicant's complaints relating to the amendment to the date of the original charge. This was a correct assumption as emerged from the submissions later filed by the applicant and developed at the hearing. In the result, however, and again with justification, the respondent filed further written submissions dated 10 November 2011 before this hearing and immediately after the applicant's late submissions had been received. This second set of submissions by the respondent sought to answer a series of 'particulars' set out in the applicant's late submissions, purportedly amplifying his two grounds of appeal.
Some issues might arise as to whether or not all of these 'particulars' truly come within the scope of either of the proposed grounds of the appeal. However, at the hearing of this application on 11 November 2011 counsel for the respondent was content to have each of the proposed 'particulars' addressed and dealt with as if it were part of, or encompassed by, the two grounds of appeal originally relied upon.
The 13 'particulars' of the proposed grounds of appeal are to be found only in the applicant's written submissions of 9 November 2011 and then amplified with much additional, and sometimes irrelevant, material. Putting aside the other materials, these 'particulars' are:
1.The originating document in the proceedings against the defendant is invalid.
2.The originating document in the proceedings against the defendant is fraudulent.
3.The amending of the charge against the defendant on 3 May 2011, by changing the date of the alleged offence, was unlawful.
4.If the amending on 3 May 2011 of the charge against the defendant is upheld to be valid, then it invalidates the originating document in the proceedings against the defendant; the Traffic Infringement Notice for reasons set out in the materials, and thus, the proceedings against the Defendant should be declared void ab initio, thus quashing the conviction against the defendant.
5.The amendment of 3 May 2011 to the charge in amending the date of the alleged offence is not valid is further demonstrated by the lack of any evidence of the amendment having occurred, other than in the transcript of the hearing on that date; no official documents as issued to the Defendant, at any times in the proceedings from the originating document, up to and including the Notice of Intention to Suspend Licences, dated 31 August 2011, show any date for the alleged offence, other than the date of the alleged offence as displayed on the original document in the proceedings against the Defendant; the Traffic Infringement Notice.
6.Magistrate Malley erred in law and in fact in determining in the hearing on 6 July 2011 that the date on the Traffic Infringement Notice constituted nothing more than a trivial error by the police officer who issued the Traffic Infringement Notice.
7.The magistrate of 3 May 2011 erred in law and committed a gross miscarriage of justice in ruling that a defendant has no right to know the evidence against the defendant, before the defendant is required to state the defendant's defence.
8.The magistrate of 6 July 2011 erred in law in ruling that the defendant would not be issued with any document that shows the amendment made to the charge, which amendment was made on 3 May 2011.
9.The magistrate on 6 July contrived a conviction that was not for the charge against the Defendant and on what charge the conviction was made, was not either defined nor supported by evidence.
10.The magistrate erred in determination of the facts of the matter.
11.The magistrate acted unlawfully in knowingly contravening the statutory requirements of natural justice.
12.The magistrate failed to properly deal with evidence put by the prosecution.
13.The appellant contends that the whole of the process involved in the matter was bad; that it involved, euphemistically, significant errors in law and non‑compliance with the statute, by more than one of the magistrates in the proceedings, especially by the magistrate who finally determined the matter and made the conviction. The appellant contends that the proceedings involved errors in law and in fact, and a gross miscarriage of justice, including but not limited to the fact that the appellant has at no time, from start to finish, been issued with any documents that show that the charge that the appellant had to defend, and, upon which charge, the appellant was convicted, was anything different to the original charge as specified in the original Traffic Infringement Notice, the Prosecution Notice, and, the Statement of Material Facts, which charge is not supported by the evidence. And, the appellant contends that the proceedings were fraudulent, from start to finish, and involve perverting the course of justice by the prosecution and the magistrates of 3 May 2011 and 6 July 2011.
Not all of these 'particulars' need be addressed in detail. Numbers 1, 2, 4 and 6 are plainly untenable. The Traffic Infringement Notice was not the originating process for the prosecution and was never in evidence or before the Court. There is no basis for any allegation of fraud. The other 'particulars' will be dealt with in substance in the reasons which follow but not necessarily individually.
History of proceedings
In view of the multiplicity of assertions in the 'particulars' it is necessary to examine the course of the proceedings.
On 13 June 2010 a motor vehicle collision occurred at the intersection of Nicholson Road and Rowley Road at Oakford. Nicholson Road is the major road running, approximately, north‑south. Rowley Road runs east‑west. It appears that, at some time in the distant past, there was a conventional four‑way crossing of those roads at one intersection. Later, presumably due to traffic control and accident prevention measures, the course of Rowley Road was redesigned. Now Rowley Road meets Nicholson Road from the west at a T‑junction, rather than at a four‑way crossing. Similarly, Rowley Road now meets Nicholson Road from the east at another T‑junction some distance to the south. Now there can be no direct crossing of Nicholson Road from traffic approaching along Rowley Road from either direction. A Stop sign faces traffic approaching the T‑junction along Rowley Road from the east. It was from that direction that the applicant's car had been travelling.
The evidence at the trial disclosed, and it was not contested, that a collision at this intersection occurred between two vehicles. One was driven by the applicant, being a white Subaru station sedan, registered number 1DET-705, which suffered damage to its right-hand side and front area. The other was a Holden Commodore utility, registered number 9CE‑280, which had been travelling south in Nicholson Road driven by Mr T J Radbone. This had extensive damage to its front central areas and engine compartment. The debris on the roadway, the positions of the vehicles after the accident and their respective directions of travel all suggested that the point of impact was on Nicholson Road as it passed the T‑junction with the eastern section of Rowley Road. The circumstances were consistent with the Commodore utility colliding with the applicant's vehicle as the latter emerged from the Stop sign facing him on Rowley Road. The applicant's vehicle was struck on the right‑hand front side as it emerged from the Stop sign controlled T‑junction. Police and fire emergency vehicles attended the scene and photographs were taken. It was established that the accident had occurred at about 1.30 pm on 13 June 2010.
On 21 July 2010, that is, over six weeks after the date of the accident, a Police Constable Burrows issued a general Traffic Infringement Notice to the applicant alleging that at 2050 hours on 14 July 2010, on Nicholson Road near Rowley Road, Oakford, he was the driver of a Subaru Liberty vehicle and committed the offence of failing to give way to his right when turning left. This police officer, Constable Burrows, had not attended the accident scene and had issued the traffic infringement notice in the course of his duties.
On receiving this notice, the applicant elected to have the matter heard and determined by a court and notified the police accordingly. He later received, in the post from the police, the original prosecution notice which, as already described, alleged that he had committed an offence on 14 July 2010 by failing to give way when proceeding from a Stop sign by driving a vehicle, registered number 1DET-705, on a road, namely Nicholson Road, where a Stop sign was erected to face him at the approach to its intersection with Rowley Road, and having proceeded therefrom, failed to give way to a vehicle on the intersecting road contrary to Road Traffic Code reg (53). Accompanying the prosecution notice was a 'Statement of Material Facts' containing a summary of the alleged offence in the following terms:
At about 8.50 pm on Wednesday, 14 July 2010, the accused drove a Subaru Liberty registered number 1DET705 on Nicholson Road, Oakford.
At the intersection of Rowley Road, which is controlled by 'a stop sign' erected to face traffic travelling on Nicholson Road, the driver stopped the vehicle to comply with the requirements of the 'stop sign' erected at that intersection.
The driver then proceeded from the 'stop sign' into the intersection without first giving way to a vehicle travelling on Rowley Road.
At the time of the alleged offence the road was Dry, weather Fine, visibility Good, lighting Off and traffic Medium.
As can now readily be seen, there were a number of mistakes in the Traffic Infringement Notice, the Prosecution Notice and the accompanying Statement of Material Facts. First, the documents wrongly alleged that the offence had occurred on 14 July 2010 rather than on 13 June 2010 when the incident actually happened. Next, the Traffic Infringement Notice and the Statement of Material Facts alleged that the accident had occurred at 8.50 pm whereas, in truth, it occurred at about 1.30 pm, in clear daylight, as already noted. Thirdly, the Prosecution Notice and the Statement of Material Facts alleged that the applicant had been driving on Nicholson Road approaching its intersection with Rowley Road whereas, in fact, he had been driving west on Rowley Road approaching Nicholson Road and had stopped at the Stop sign at that T‑junction, waiting to turn into Nicholson Road. These inaccuracies encouraged Mr Busby to believe that he had a good and valid defence to the charge as framed and that subsequent steps, taken to correct only the erroneous date by amendment, were invalid or inefficacious.
The prosecution notice sent by mail to the applicant was also accompanied by a 'court hearing notice' notifying him that the matter would be dealt with by the court for the first time on 25 November 2010 and that if he entered a plea of not guilty he need not attend that hearing. He entered a written plea of not guilty and forwarded that to the court on 4 November 2010. Later he received a notice of adjournment of the hearing in the Armadale Court dated 25 November, advising that the hearing had been adjourned until 14 December 2010. Mr Busby attended at the Armadale Court for the hearing on 14 December 2010 at which the magistrate listed the matter for trial on 17 January 2011. Later he was sent another notice of adjournment confirming that the matter had been listed for trial on the latter date, namely, 17 January 2011.
Some indication of Mr Busby's intended defence to the charge emerged at the hearing before the magistrate on 14 December 2010 when the trial was adjourned from 14 December 2010 until 17 January 2011. The presiding magistrate asked Mr Busby whether or not he would be calling any witnesses at the trail. He indicated that his only witness would be himself. At that point, the magistrate asked Mr Busby whether he accepted that he was the driver of the vehicle on the date alleged and he said, 'No'. The magistrate asked again, specifying the date as 14 July 2010, and again received a negative answer with the following explanation:
On that date - and I ask for the prosecution to justify the charges on the basis that I have obtained information that the plates for the vehicle were returned on 7 July, one week before the alleged offence. As far as I'm aware, at that date the car had effectively been put to death and therefore it was not driveable and so I refute the charge in its entirety and may I ask the prosecution to justify the bringing of a charge of my driving the vehicle on a date one week after the plates were returned.
This was not further pursued and, as already noted, the date for trial was then fixed for 17 January 2011.
The matter came on for trial before her Honour, Magistrate Richardson at the Armadale Court on 17 January 2011 but the prosecution was not able to proceed because the complainant had not been summoned. Against the applicant's objection the prosecution was again granted an adjournment and the trial was then set down for 6 July 2011.
The next development was that Mr Busby received a letter dated 14 February 2011 from the Registrar of the Armadale Court advising that, in order to address current issues of delays for the hearing of defended cases, the Court proposed to have a callover of defended cases listed for hearing before a magistrate on 3 May 2011 and that his case was included in the callover list and that he or his legal representative should then be present, when the case would be reviewed and an earlier date for hearing might be allocated.
Mr Busby has stressed in his affidavits and in his submissions that all this correspondence from the court consistently referred to the charge against him as being one of failing to give way at Oakford on 14 July 2010 and, therefore, as implying that the facts of the alleged offence were those as mistakenly set out in the original prosecution notice and in the Statement of Material Facts.
At the callover of defended cases before her Honour, Magistrate Woods, on 3 May 2011, the police prosecutor applied to amend the date on the prosecution notice to 13 June 2010. This amendment was sought and made without Mr Busby being called upon. Mr Busby then objected to the amendment and submitted that it was a perversion of the course of justice. He maintained that he should have an opportunity to object to the amendment, that the prosecution was playing games with the charges and on being asked by her Honour whether or not he was driving his vehicle on 13 June 2010 and was involved in an accident on that date, he claimed that he did not know because the application for the amendment had been 'dropped on me now' in a sudden and unexpected fashion. In view of this, her Honour adjourned the matter until 6 May 2011 for him to come back so that:
On that day, Mr Busby, we will discuss this matter and you can tell me that information. I need to know whether you were driving the motor vehicle on 13 June, 1DET‑705, on Nicholson Road, Oakford. I want to know if there was a Stop sign on the intersection with Rowley Road and I want to know what happened, okay?
As he says in his affidavit, Mr Busby subsequently made and lodged a complaint to the Chief Magistrate against her Honour, for alleged misconduct 'in what she did in the case' but the response of the Chief Magistrate was to reject his complaint.
At the appearance before her Honour, Magistrate Woods on 6 May 2011, Mr Busby refused to answer questions from the magistrate regarding the charge except to say that the only witness for the defence would be himself. Following that appearance, Mr Busby again received a notice of adjournment of the charge specifying that it was listed for hearing on 6 July 2011. Despite the amendment made by her Honour at the callover on 3 May 2011, this notice of adjournment still incorrectly specified that the alleged offence had occurred on 14 July 2010.
Mr Busby submits, and it is the case, that at no time in the proceedings had he been issued with any document which described the facts of the charge against him as being different in any detail to those stated in the original Traffic Infringement Notice or in the Statement of Material Facts which, as is now quite clear, wrongly stated that the incident occurred on 14 July 2011.
Following this development, Mr Busby corresponded with various members of Parliament and the Insurance Commission of WA about the accident and road safety conditions in and adjacent to the intersection. Details of this correspondence have been included in his affidavits but they are not relevant to any issue now to be determined.
Trial on 6 July 2011
On 6 July 2011 the matter came on for trial before his Honour Magistrate Malley. His Honour began by saying to the applicant that the charge was one of failing to give way to another vehicle at the Stop sign and asked if the plea of guilty was being maintained. Mr Busby responded:
BUSBY, MR: I plead not guilty. There are a couple of things I need to raise with the court before the police - or the prosecution commences its opening address, as specified in the Criminal Procedure Act. One point I - one very significant point I will make is that at this stage I have not received any details of the charge against me. The charge was amended on 3 May and I have not received any document indicating that.
In the following exchange, his Honour pointed out that the only amendment made by the prosecution was to the date of the alleged offence, changing it from 14 July to 13 June and saying, 'So you're not going to get anything in relation to that'.
The submissions were then deflected somewhat by Mr Busby making reference to an unsuccessful application he made to the duty Judge of the Supreme Court the previous evening to seek a remission of the fees payable on some application which he wished to institute in the Supreme Court concerning some form of challenge to the decision to amend the charge on 3 May 2011. The learned magistrate pointed out that the charge was ready to proceed, that the prosecution was entitled to amend at any time, and that the only amendment made to the charge was to the date, which was to a particular rather than to the nature of the charge. The learned magistrate would not permit further submissions to be made about the efficacy of the amendment and would not hear Mr Busby further on the matter. Mr Busby attempted to continue his submissions about the amendment but was directed to move on and was informed that he would not be heard further about the efficacy of the amendment. Should it be material, I am satisfied that this refusal of his Honour to hear Mr Busby further about the details of the charge effectively meant that no objection to the charge such as might have been made under s 178(2) of the Criminal Procedure Act was possible and that no attention was given by the Court to whether or not the charge was defective.
Nevertheless, his Honour inquired about the substance of the defence and in the ensuing exchange it became apparent that Mr Busby had been maintaining that he could not have been guilty of the offence as originally charged, namely that it was committed on 14 July 2010, because by then he had disposed of the vehicle and was in a position to prove that that was so. His Honour acknowledged that that would have been a valid and sufficient defence if the charge had not been amended as it was on 3 May 2011. However, his Honour pointed out that Mr Busby knew that the amendment was made on 3 May 2010 as he had been present. His Honour concluded that he was satisfied that the amendment had been made and that it was ludicrous for Mr Busby to suggest that he had not been aware of that change, or come to the trial that day, 6 July 2011, unaware that this was the case which the prosecution was advancing against him. The magistrate informed Mr Busby that he assumed that the defence would no longer be that Busby was not there but presumably something else, and directed that the trial proceed.
The prosecutor, without any opening, then proceeded to adduce evidence. He called the driver of the other vehicle, Mr Timothy John Radbone, who confirmed that he was travelling south on Nicholson Road, that he saw a white Subaru stopped at the T‑junction with Rowley Road, stationary, which then started to pull out in front of him. He slammed on his brakes but could not stop in time and collided with the Subaru which had just emerged from Rowley Road. In cross‑examination Mr Radbone was unable to say what speed he was travelling on Nicholson Road but estimated that it was between 85 and 90 km per hour. Despite a lengthy series of other questions, nothing further of significance emerged from the cross‑examination.
Also, Senior Constable L F McCarthy gave evidence that he arrived at the intersection at about 2.00 pm, he described the layout of the road system, the location of the Stop sign and produced photographs of the scene showing the damaged vehicles in position after the accident. That completed the case for the prosecution.
At this point, Mr Busby queried the absence of any evidence from the police officer who had issued the Traffic Infringement Notice, Constable Burrows. The police prosecutor thereupon announced that Constable Burrows was present in the court but that he, the prosecutor, did not intend to call him as he had no material evidence to give. However, the prosecutor explained that Mr Busby could, if he wished, call Constable Burrows as a witness for the defence but Mr Busby chose not to do so.
At this point, Mr Busby made a submission of no case to answer on the basis that the evidence led to support the charge did not establish the facts alleged in the Traffic Infringement Notice or in the Statement of Material Facts, namely that the collision occurred at night on 14 July 2010. Mr Busby also pointed out that the evidence showed that he was turning left from Rowley Road into Nicholson Road and he also submitted that the police had not adduced evidence of the speed of the other vehicle, only to be told that Mr Radbone had estimated his speed at between 80 and 90 km per hour. Mr Busby maintained his submissions, again contending that he did not know the charge against him.
The learned magistrate ruled that the substance of the charge was that of failing to give way after stopping at a Stop sign and that Mr Busby must have been aware that the amendment had resulted in the date of the alleged offence being changed from 14 July 2010 to 13 June 2010 and that the evidence established, at a prima facie level, that that had occurred. Mr Busby held tenaciously to his submission that the change of the date of the offence had meant that he was not able adequately to defend the charge because he did not know the case against him and that, in any event, the evidence did not support the unaltered allegation in the Traffic Infringement Notice that the accident had occurred at 8.50 pm at night. The magistrate ruled that there was a case to answer and that Mr Busby would have to choose whether or not to give evidence.
Mr Busby responded by saying that at that stage he could not put up a defence because the facts of the case kept changing and he was unable to put a defence and, therefore, he would have to leave it to an appeal. His Honour warned him of the consequences but Mr Busby decided not to give any evidence. His Honour then gave his decision and convicted the applicant, saying:
There's no dispute that the accused was the driver of the Subaru which was on Rowley Road.
Rowley Road is stopped at the intersection; no dispute of that. The only evidence, and I say the only evidence, of the events of that day comes from Mr Radbone. At 1.30 he was driving on Rowley Road. He was doing - he was asked the speed and he says a guesstimate, it's a 90 zone and he says 80 to 85. We can't be certain as to what speed, but as I've indicated, by reasons of the accused's failure to give evidence, there is certainly no evidence of speed and there's simply in those circumstances no evidence of what I would call excessive speed which might well indicate some form of defence on the part of the accused.
The evidence is that the accused pulled out, and as I've indicated, I don't recall him saying he was turning left but he - it may have been the case but under cross‑examination he clarified that, and I say, I didn't - I don't get the same sinister nature. At the end of the day it matters not the fact of whether he was pulling - he pulled out. Whether he was turning left or right doesn't make any difference to the prosecution case. The photos indicate, and one can draw an inference, in my view from the fact that the impact point is certainly at a point on Nicholson Road and that can be reflected in the - where the glass and vehicle parts are found lying on the road which is certainly on Nicholson Road, so there's no dispute that - no evidence to the contrary that in fact Mr Busby pulled out from the Stop sign, and as a consequences the parties collided.
His Honour concluded that he was satisfied that the charge had been proved and he imposed the fine and ordered the payment of costs.
Variation between facts in charge and the evidence
It is evident from these reasons that his Honour was mistaken in referring to Mr Radbone as driving on Rowley Road. He was, in fact, driving south on Nicholson Road. It was the case that no step had been taken to amend the Statement of Material Facts which asserted that the collision had occurred at about 8.50 pm on 14 July 2010 but that was not in evidence. No allegation about the time of the accident was contained in the prosecution notice itself and, consequently, no further amendment of the prosecution notice to assert the time of the offence was ever necessary.
The plain fact of the matter was that the evidence established, uncontrovertibly, that at about 1.30 pm on 13 June 2010 the applicant, as driver of the white Subaru station wagon, had pulled out of Rowley Road, intending to turn into Nicholson Road after having stopped at a Stop sign. In doing so, he moved in front of a vehicle driven by Mr Radbone south on Nicholson Road to which he should have yielded right of way and a collision occurred. No real attempts were made to refute those allegations, other than a faint, unsupported suggestion that Mr Radbone may have been speeding.
The position adopted by Mr Busby at the trial, and again in this application, was that the proceedings were defective because he had not been given written notice of the amendment made to the charge on 3 May 2010 and because the evidence led at the trial did not establish that the incident had occurred at 8.50 pm as set out in the (erroneous) Statement of Material Facts. No use of the Statement of Material Facts was made at or before the trial and the prosecutor did not open the case on the facts, so that there was no basis to contend that the prosecution had presented its case on the facts in any way inconsistent with the evidence which was adduced and accepted. Nevertheless, the facts established by the evidence did not match the allegations of fact in the amended charge and Mr Busby has made a submission in 'particular' number 9 that the 'conviction was not for the charge against the Defendant' and that 'the conviction … was not … supported by evidence'.
Mr Busby's case in support of his application for leave to appeal also includes his complaints about the procedure followed in the Magistrates Court resulting in the amendment on 3 May 2010 and the lack of formal written notice of the amendment being given to him then or subsequently.
In his written submissions he amplifies these objections by adding that if the amendment made to the charge on 3 May 2010 was effective, the result was that the original traffic infringement was issued out of time and that, consequently, the amended charge could not be pursued. He further submits that the original traffic infringement notice was issued six weeks after the amended date of the alleged offence and that it was out of time, with result that this amounted to a fraudulent concealment, rendering it illegal. In relation to the amendment, Mr Busby maintains that he should have been given notice of the amendment and been given a chance to be heard in opposition to it before the application to amend was allowed. He claims to have been deprived of natural justice in relation to the process which led to that amendment.
He submits that pursuant to s 132(7) of the Criminal Procedure Act 2004 (WA) the court was required to issue both the prosecution and the defendant with a copy of the amended charge following the amendment and that the failure of the court to do this renders the conviction invalid. He submits that each detail in a charge is significant and cites John Holland Pty Ltd v Industrial Court of NSW [2011] HCATrans 95 and Parsons Brinckerhoff (Aust) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338. He further submitted that there was a gross miscarriage of justice on 3 May 2011 by the magistrate then demanding that he should state particulars of his defence at the callover before the prosecution had provided details of its case. In this regard, however, it is to be noted that Mr Busby declined to respond to the magistrate's demands at the callover on 3 May and maintained that refusal at the subsequent hearing on 6 May 2011. He further submits that the magistrate at the trial erred in law in refusing to provide Mr Busby with any document showing the amended charge.
Mr Busby maintains that he was convicted of a charge against him which was, in material respects, different from the facts established by the evidence. In this respect, he points to the Statement of Material Facts alleging that the offence occurred at 8.50 pm and the unamended errors in the prosecution notice that he had been driving on Nicholson Road whereas he was emerging from Rowley Road into Nicholson Road. (Written submissions pages 6 ‑ 9 (inclusive).)
The charge as formally amended was not read to Mr Busby at the commencement of the trial on 6 July 2011 nor, from an examination of the available transcripts, does it appear that it was ever formally read to him. He was asked whether he maintained his plea of not guilty to the charge of failing to give way at a Stop sign but that was all. At the trial which took place on 6 July 2011 there was no opening either on the facts or on the law by the prosecutor and, therefore, no opportunity to notice the discrepancies between the facts alleged in the amended charge and the evidence which was to be led.
The issue for decision is whether or not any of these matters, alone or in combination, provide reasonable grounds for appeal by Mr Busby from his conviction in order to be sufficient for leave to appeal to be granted: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 and Criminal Appeals Act 2004 (WA) s 9(2).
Applicable legislation
There are several statutory provisions relevant to the course followed in this case which require examination. They include:
26. Accused's general entitlement to prosecution notice
(1)If an accused or an accused's legal practitioner asks a court for a copy of a prosecution notice containing a charge against the accused that has been lodged with the court and that has not been determined or dismissed, the court must provide one free of charge, unless the request is unreasonable.
(2)Failure to comply with subsection (1) does not invalidate the prosecution notice or the commencement of the prosecution but may be grounds for adjourning the prosecution.
59. Initial procedure, pleading
(1)This section must be complied with -
…
(b)if an accused is charged with a simple offence …
(2)Before requiring the accused to plead to the charge, the court must -
(a)be satisfied the accused has a copy of the prosecution notice containing the charge and has had time to consider the notice and seek legal advice about it;
(b)be satisfied the accused understands the charge and the purpose of the proceedings; and
(c)if section 35 requires the prosecutor to serve the accused with any material and the prosecutor has not done so, proceed in accordance with section 35(10).
(3)After complying with subsection (2), the court must require the accused to plead to the charge.
…
(5)This section does not prevent a court from requiring an accused to plead to a charge at any subsequent time.
132. Amending charges etc.
(1)The powers in this section may be exercised by a court in relation to a charge at any time before or during a trial.
…
(3)A court, on the application of the prosecutor, may amend a charge.
(4)Without limiting subsection (3) a court may amend a charge to correct any variance between the charge and the evidence led by the prosecutor in support of it.
…
(7)A court that amends a charge, prosecution notice or indictment must ensure the prosecutor and the accused are each given a copy of it.
(8)If a court amends a charge, prosecution notice or indictment and is satisfied that the amendment prejudices the accused's defence of the prosecution notice or indictment or of a charge in it, the court must adjourn the prosecution notice, indictment or charge, as the case requires. (emphasis added)
The power of amendment conferred by s 132 of the Criminal Procedure Act is amplified by s 178 which, by s 178(5) provides that this latter section is in addition to and does not affect the operation of s 132. Section 178 deals with defects in substance or form in a court document which is defined to include a prosecution notice, indictment and other like documents. It provides by s 178(2) that any objection by an accused to a prosecution notice or indictment on the grounds that it is defective must be made before the prosecutor's opening address and then provides, by s 178(3):
If a court document is defective in substance or form, the court, on any application by a party or on its own initiative ‑
(a)must order that the document be corrected if the defect is not material to the merits of the case;
(b)may order that the document be corrected in any other case.
Subsection (4):
If a court makes an order under this section:
(a)the court document must be amended accordingly by the court or some person ordered to do so by the court;
(b)each party is entitled to a copy of the amended court document; and
(c)the court may adjourn the case. (emphasis added)
On this occasion, it is not necessary to consider the position of whether an accused person failing to object to a court document before the prosecutor's opening address is thereafter debarred from doing so. Whether any such conclusion can or should be drawn may depend upon the nature of the defect in the document and whether or not it goes to the validity of the charge or may tend to cause an injustice. That is a question which can be left for a later day but it is not unimportant.
In the present case, an 'objection' to the prosecution notice on the grounds of error as to its contents was made on behalf of the prosecution at the hearing of 3 May 2011 leading, as I have already described, to its amendment. The result should have been for the amendment to be formally recorded. An objection by Mr Busby was made or attempted on 6 July 2011. Upon the amendment being made, each of the parties is entitled to a copy of the amended court document. That should have been provided to Mr Busby upon his demand, but that was never done. This demonstrates a procedural error in the course of the prosecution but the failure to supply the copy of the amended prosecution notice to Mr Busby does not, in my view, invalidate the amendment or the proceedings: Ayles v The Queen [2008] HCA 6; (2008) 232 CLR 410. As Gleeson CJ observed in that case [8]:
The result must be determined in the context of the trial as a whole giving rise to issues of powers and fairness which may be serious issues for determination the resolution of which would depend upon the facts and circumstances of the particular case.
Clause 5 of sch 1 to the Criminal Procedure Act provides:
5. Alleged offence to be described
(1)A charge in a prosecution notice or indictment must inform the accused of the alleged offence in enough detail to enable the accused to understand and defend the charge, and in particular must -
…
(c)identify with reasonable clarity -
(i)the date when the offence was committed or, if the date is not known, the period in which the offence was committed; and
(ii)where the offence was committed.
(2)For the purposes of subclause (1) -
…
(c)a charge is not defective only because an element of the offence is not stated; and
…(emphasis added)
It is also well established that at common law a defendant is entitled to be told not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge ‑ Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531, 557 at [26] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ). In Johnson v Miller (1937) 59 CLR 467, 486 Dixon J considered that an information must specify 'the time, place and manner of the defendant's acts or omissions'. It is evident that faced with the erroneous allegation in the original prosecution notice about the date of the offence, Mr Busby saw an opportunity to defend the charge successfully by establishing that he could not have been driving the car on the date alleged. This gives rise to the question of how material the allegation of the date of the offence was in the original prosecution notice.
The general rule is that a date specified in an indictment or charge is not a material matter which must be specifically proved unless it is an essential part of the offence charged. This principle may be displaced by considerations of fairness in a particular case if it has been conducted on the basis that the offence occurred on a particular date (or between specified dates) and the accused has prepared his defence on that basis. The availability of a successful alibi defence will provide an illustration of how the particularity of the date of the alleged offence and proof of it may become very significant ‑ compare R v Dossi (1918) 13 Cr App R 158, 160 and CB v The State of Western Australia [2006] WASCA 227, [72] ‑ [73] (Roberts‑Smith JA). See also R v Pfitzner (1976) 15 SASR 171, 185 (Bray CJ).
Mr Busby has sought to rely on the contents of his affidavit sworn 23 November 2011, filed after the hearing of this application but pursuant to leave granted to allow him to address matters raised in the supplementary written submissions of the respondent. There he deposes to a variety of matters and annexes correspondence and other documents dealing with accident statistics at or near the intersection where these events occurred and measures taken by the Main Roads Department and other authorities to modify the intersection pursuant to 'black spot' road maintenance programmes.
It is clear that an appeal court does have the power to admit new evidence ‑ see Criminal Appeals Act s 39(1), s 40(1)(e). However, the evidence sought to be relied upon by Mr Busby, even if new or fresh, is not relevant to the determination of any issue arising at the trial before the magistrate or on this application for leave to appeal. Further, whether the intersection was dangerous, whether it had been singled out for improvement by the Main Roads Department or other similar authorities and whatever may have been its accident history in the past, did not affect the question of whether or not he failed to give way when moving from this Stop sign.
No matter relating to the general safety or accident history of this intersection was raised at the trial and no attempt was made by Mr Busby to adduce evidence on that issue or any other. It follows that these materials are not evidence which was before the learned magistrate, nor do they qualify as fresh or new evidence which should be permitted to be dealt with on this application. I shall, therefore, have no regard to them: Lawless v The Queen (1979) 142 CLR 659, 675 ‑ 676 and Mahmood v The State of Western Australia (No 2) [2008] WASCA 259 [249] (Buss JA).
In a separate affidavit sworn 3 August 2011 (at pars 30 ‑ 31) Mr Busby refers to and annexes documents and correspondence purporting to establish that the motor vehicle licence plates for his white Subaru station sedan were surrendered on 7 July 2010, one week before the date of the alleged offence (as it first was charged), and were returned to the Kelmscott Licensing Centre on that date. Objection is taken by counsel for the respondent to this material on the basis that this constitutes evidence which was not before the learned magistrate at the trial and which, therefore, should not be received on the application for leave to appeal. It is implicit in these submissions that this material does not constitute fresh evidence or new evidence cognisable on this application. This issue need not detain or prolong the resolution of this application. The only potential relevance of that evidence could be to establish that the accident did not occur on 14 July 2010 as alleged in the original prosecution notice, and as contended for in the Statement of Material Facts. However, that was no longer the case asserted by the prosecution at the trial or at any time after the amendment of the charge on 3 May 2011.
Power of amendment
The power of the court to amend a charge under s 132 of the CPA was considered in Simpson v Department of Environment and Conservation [2011] WASC 206 [80] ‑ [84] (Hall J). His Honour acknowledged the amplitude of the power and pointed out that a defendant may have chosen to conduct his case differently if the charge had been framed and the trial conducted as originally alleged, leading to a need to consider whether or not late amendments should be refused because of actual or potential prejudice - see also Bauerhuit v Dean [2011] WASC 253.
Mitchell v Myers (1955) 57 WALR 49 is a decision about the power of amendment conferred by s 48 of the Justices Act 1902 ‑ 1948 (since repealed) in the case of the discovery of a variance between the charge and the evidence led in support of it. Dwyer CJ at 53 concluded that the power of amendment could be exercised at any time before a final decision on the original complaint was made by the Justices. That is, before conviction or dismissal. Section 132 of the Criminal Procedure Act is not in the same terms as the former s 48 of the Justices Act but it does provide that the power of amendment may be exercised at any time at, during to before the end of the trial. That would appear to be the latest time at which any such amendment could be made.
In this present case, the amendment was sought and made on 3 May and the trial conducted on 6 July 2011. Accordingly, the applicant had more than two months' notice of the amendment and the potential effect which it had on his case. There does not seem to be any doubt that he cherished a hopeful expectation that he could defeat the prosecution because of the mistake made in the date inserted in the original prosecution notice and continued to advance that hope after the mistake had been corrected. However, one of the purposes of the power of amendment is to allow such mistakes to be cured because it would be an injustice if an offender were to escape conviction for what the facts disclosed was an offence simply because a clerical error about the date of the offence had been made at an early stage. This was obviously a case in which the power to amend the charge could and should have been invoked so long as it was done in sufficient time to avoid prejudice to the applicant at his eventual trial. There is nothing whatever to suggest that, the amendment having been made on 3 May, this constituted a prejudice to the applicant in preparing for the trial two months later on the basis that the trial would be conducted on the true issues.
There is no scope for acceptance of Mr Busby's submissions that the effect of the amendment was to allow a charge to be brought or maintained out of time. A prosecution for such a simple offence must be commenced within 12 months after the date upon which the offence was allegedly committed, unless other statutory provision applies or the person consents to the late commencement of the charge ‑ s 21 of the Criminal Procedure Act. This amendment was, as noted many times now, made on 3 May 2011 in respect of an offence alleged to have been committed and shown to have been committed on 13 June 2010. The charge, as amended, was therefore within time even if one were to count the institution of the charge as being the date of the amendment, which is itself a questionable issue which need not be pursued.
Breach of natural justice
Mr Busby contends that the amendment of the charge on 3 May 2011 was made without prior notice to him and without him being given an opportunity to oppose it. The transcript indicates that it was made orally without prior notice and the application was accepted and effected by the magistrate without Mr Busby being called upon. However, immediately afterwards, Mr Busby objected, claimed he had not been given notice and that the amendment was 'a perversion of the course of justice'. When asked to elaborate on the reasons for that assertive submission, he was not willing to do so although one might infer that one substantial reason for his opposition was that the amendment effectively deprived him of the defence upon which he intended to rely in exploitation of the mistaken date previously advanced by the prosecution. That would not have been a sufficient reason to refuse the amendment because it is for the avoidance of such an unmeritorious and fortuitous consequence that the power of amendment exists. Nevertheless, it is apparent the learned magistrate, despite the manner in which the application to amend was first dealt with, remained willing to consider it on the merits in the light of any objections raised by Mr Busby. In the absence of persuasive objections, her Honour was not disposed to disallow or reconsider the decision to amend. Accordingly, I see no basis for a contention that the applicant was deprived of a right to be heard in opposition to the amendment and there is no reasonable basis for any prospect of success on an appeal on such a ground.
Mr Busby also contends that he was deprived of the right to be heard on the question of the amendment at the trial before his Honour Magistrate Malley, on 6 July 2011. As earlier set out, Mr Busby did object at the commencement of the trial on the basis that the charge against him alleged the commission of an offence on 14 July 2010, only to be told by his Honour that the charge had been amended in his presence on 3 May to allege that the offence was committed on 13 June 2010 and that the amendment had been made. His Honour was correct in that regard. If, as seems to be the case, Mr Busby then still clung to the hope that he could successfully defend this prosecution on the basis that the charge remained as it first had been, he was utterly mistaken and had no grounds for such a belief in view of the history of events leading to the amendment. If he had some other defence to answer the allegation that the offence was committed on the correct date but was not in a position to present such a defence because of lack of preparation or mistaken belief as to the status of the earlier amendment, then he could have applied for an adjournment of the trial in order to present a defence which might have addressed the charge on its true merits. However, Mr Busby did not apply for or seek to apply for an adjournment on 6 July 2011 on this or on any other ground.
Nevertheless, that was not the end of the issue about defects in the Prosecution Notice in the light of its remaining unamended errors. His Honour's directions closed down any possible consideration of these.
Failure to provide the applicant with a copy of the amended prosecution notice
I accept the submissions of Mr Busby that he was never provided with a copy of the charge against him as amended. Furthermore, his protests that he had not been given notice of the amendment and did not know the charge against him should, in the context, have been regarded as a demand for the provision to him of a copy of the amended prosecution notice or charge. It was, in effect, treated as such a demand because it was emphatically refused by the learned magistrate on 6 July 2011 when he was told, 'You're not getting that'. This should have been provided to him in view of s 132(7) and s 178(4)(b) of the Criminal Procedure Act. That was a procedural error and a denial of a right to which Mr Busby was entitled.
It was compounded by the fact that the charge as amended was never formally read to him so that he could plead again to the charge in the terms by which it then stood. This raises the question of whether or not, once the prosecution notice had been amended, the applicant should have had the amended charge formally read and a plea to the charge as amended taken (Criminal Procedure Act s 59(5)). R v Radley (1973) 58 Cr App R 394 deals with the question of whether or not there should be a second arraignment at a trial on indictment in cases where there has been a material amendment made to the indictment. It establishes the proposition that a second arraignment may not be required where the amendment is very slight and cannot really be regarded as in any way introducing a new element into the trial, but if there is any doubt about this point there should be a second arraignment - see also Go v The Queen and Carter's Criminal Law of Queensland at par 572‑50.
This is a case in which there should have been a second occasion on which the amended charge was read and another plea taken. At the very least, that would have concentrated attention on the details of the charge and perhaps led to a recognition of the mistakes about the names of the roads and the location of the Stop sign. However, the failure to take this procedural step does not really change the position because of the fact that the applicant was convicted of an offence where the evidence did not match the charge.
Although it is not obligatory for a prosecutor to make an opening address, the absence of such an address in this case meant that the locations of the events and circumstances alleged to give rise to the offence were not stated so that the relevance, and hence the admissibility, of evidence led for the prosecution could not be compared with the framework of facts alleged by the charge.
Observance of the formalities of reading a charge to an accused person fully and distinctly before requiring that person to enter a plea is important and an essential component in any criminal trial or prosecution. If a charge is to be amended and the amendment is allowed, then in most such cases the charge as amended should be put to the accused person and that person asked distinctly how he or she pleads to the charge as amended. The need for a written copy of the charge, either originally or as amended, to be provided to an accused person is an important safeguard to ensure that the accused person clearly understands the charge or charges which are being alleged against him or her and has an opportunity to answer the charge without any confusion or uncertainty.
This has a further consequence. Proper definition and disclosure of the charge to an accused person is an important prerequisite in allowing the accused person to answer the charge. This is because the accused person, if he or she desires to make an answer by adducing evidence, need only address the charge in the factual setting as alleged, not some other different or supposed version.
For the respondent it has been submitted that the application for leave to appeal does not, in any express way, purport to challenge the decision of her Honour, Magistrate Woods on 3 May 2011 to amend the charge and that, therefore, submissions about errors or irregularities in relation to that process of amendment are not relevant and should not be entertained. It is the case that the application for leave to appeal only seeks to challenge the decision of the court on 6 July 2011, resulting in the conviction. I therefore accept the submission of the respondent that errors and irregularities occurring in relation to the process of amendment are not themselves relevant but I do not consider that that means that they should be entirely disregarded. Insofar as the applicant complains of a miscarriage of justice arising from the trial of the charges against him on 6 July 2011, the fact that he had not been provided with a copy of the prosecution notice as amended, and that the charge as amended had not been formally read to him or a plea to the amended charge taken remains significant because those matters bear upon the fairness of the trial as it was conducted and, particularly, upon whether or not Mr Busby had proper notice of the details of the charge against him that day.
The question which, therefore, arises is what significance, if any, is to be attributed to the fact that Mr Busby was not given a copy of the amended charge, did not have it read to him after the amendment and was not formally required to plead again to the charge as amended. Another feature of the events which must not be overlooked is that the prosecution notice, as amended, still contained erroneous allegations resulting in a variance between the charge and the evidence led at the trial. It may be supposed that there was no real confusion at the trial because Mr Radbone plainly gave evidence that he had been driving south on Nicholson Road, and the configuration of the roadways at the point of the accident showed that it was Rowley Road which terminated at the T‑junction with Nicholson Road.
However, the fact that these omissions occurred and that this further error in the prosecution notice was not corrected show a distressing laxness in the formulation of the charges, the role of the prosecution and, it must be said, in the supervisory procedures of the court which it was the responsibility of both magistrates to enforce. There is no escape from this unfortunate conclusion simply because this was a mundane traffic prosecution in a busy court of summary jurisdiction where the accused person seemed to be intent upon taking unmeritorious points in exploitation of an initial prosecution series of mistakes.
Mr Busby was entitled to be tried on this charge according to law and for him, at least, the occasion was important and significant, whatever others may have thought of his approach. The laws of procedure for such trials are part of the process and are a safeguard of the rights of accused persons. They should have been respected and applied. They are not safeguards which can be regarded as unimportant, optional or insignificant. Failure to observe them constitutes an error of law and an error of law, if likely to have produced a miscarriage of justice, confers a right to appellate review and correction by this court.
Procedural errors at trial
This review has established the following procedural errors at the hearing leading to the amendment of 3 May 2011 and at the trial itself on 6 July 2011.
1.No notice of the proposed amendment to change the date in the charge from 14 July 2010 to 13 June 2010 was given to the applicant.
2.The applicant was not heard in opposition to the application for that amendment.
3.The applicant was not given, upon his request, a copy of the prosecution notice as amended.
4.The charge as amended was never read to the applicant and no plea was taken to the amended charge other than obtaining confirmation that he still pleaded not guilty to the (amended) charge.
Did these procedural failings produce a miscarriage of justice? If no substantial miscarriage of justice has occurred, this court may dismiss the appeal even if a particular ground of appeal might otherwise be decided in favour of an appellant ‑ Criminal Appeals Act s 14(2).
It must be said that an amendment to correct a mistake in the date of the alleged offence as contained in the prosecution notice is a typical instance of where leave to amend should be granted in order to establish the correct date unless, by doing so, the amendment would introduce a different charge after the expiration of a relevant limitation period or the amendment was made at a time which would cause substantial prejudice to the person charged. The principles applying in these circumstances have been fully reviewed and discussed by Kennedy J in Starling v Ostrowski [2001] WASCA 74; (2001) 24 WAR 61 [17] ‑ [24] (Ipp & Owen JJ agreeing). It remains an error that the applicant was not afforded an opportunity to consider the proposed amendment in advance or to be heard in opposition to it before leave was granted but, having regard to all the circumstances, I am not persuaded that any substantial miscarriage of justice could possibly have resulted from that omission because the strength of the case to be met was, in practical reality, irresistible and the amendment sought was within the time for laying a charge; did not introduce any different charge at law; and occurred at an interlocutory hearing leaving two months before the trial for the applicant to accommodate the effects of the amendment and to prepare his defence for the amended charge.
It is obvious that by the commencement of the trial on 6 July 2011 he appreciated that the charge against him was that he had committed the alleged offence not on 14 July but on 13 June 2010. This is evident from his insistence about the lack of notice and alleged improprieties which occurred when the amendment was made two months before. There can be no doubt that the amendment was meritorious and should have been allowed. Despite the fact that he was not asked to plead to the charge as amended, it is evident that Mr Busby was aware of the significance of the change in the charge and maintained his plea of not guilty in the light of that change. He demonstrated such a choice at hearings on 3 May and 6 May and again on 6 July 2011.
Mr Busby was not, as he should have been, provided with a copy of the prosecution notice as amended, but there is no basis for suggesting that he suffered any prejudice as a result. He did not misunderstand the nature of the case which the prosecution set out to establish on 6 July 2011 and he did not indicate in any way that he had or wished to prepare a defence to the charge as so amended. He had a misguided belief in his entitlement to rely upon the charge as originally formulated but, putting that aside, as it must be put aside, the absence of a copy of the charge as amended and the absence of a reading over of the amended charge to him provided no handicap or hindrance to his approach to the case or any other approach which might reasonably have been contemplated in these circumstances. That being the case, there is no basis, in my view, upon which it could be concluded there had been any substantial miscarriage of justice arising from the failure to provide a copy of the amended charge to Mr Busby or in failing to require him to plead to the charge as so amended.
That the procedure at the trial was, unfortunately, and in some significant respects, lax should be a matter of regret for all concerned but it does not convert those proposed particulars of his grounds of appeal into the category of reasonably arguable grounds of appeal.
At the trial on 6 July 2011 the applicant seems still to have entertained the thought that, notwithstanding the events of 3 May, the charge against him remained the one alleged in the prosecution notice, that is, prior to the amendment. This is plainly a mistaken view but there is reason to consider that the mistake was contributed to, or at least not adequately dispelled, by the failure to provide the applicant with a copy of the prosecution notice as amended, to which he was entitled, Criminal Procedure Act s 132(7), and by the failure for the amended charge to be formally read and a plea to it taken before the commencement of the trial. As I have already said, these shortcomings have a bearing on the fairness of the trial as it was conducted on 6 July 2011.
What does emerge from the record and the trial is that the prosecution notice, even as amended, still contained material errors - the variance previously described. These mistaken allegations were never apparently noticed or amended. The evidence plainly disclosed the true position that the applicant had been driving west on Rowley Road, stopped at the Stop sign facing him on that road, and when moving on to turn into Nicholson Road he failed to give way to Mr Radbone's vehicle driving south on Nicholson Road and a collision ensued. That evidence, if accepted (and there was no contrary evidence and no reason to reject this evidence) established that Mr Busby had committed an offence of failing to give way at a Stop sign but not the offence as charged against him in the amended prosecution notice. He was thereupon convicted of an offence, which did not match the details of the offence alleged.
What, if any, are the consequences of this? The errors in the prosecution notice about the identity of the roads and the position of the Stop sign should have been noticed before and at the trial, and certainly before any judgment of conviction was entered. That they were not noticed can only mean that very little attention was paid to the details of the charge being considered by the court. If these errors had been noticed an application could and should have been made for further amendment to the charge and that could have been dealt with in the course of the trial or even after the magistrate's reasons for decision. For an example of an amendment being made to the charge even after conviction, see R v Fahey [2002] 1 Qd R 391; (2001) 121 A Crim R 390; [2001] QCA 82.
This was not a case in which there was any real reason why such an amendment would be refused, even at a late stage, given the common basis upon which the trial was conducted, namely that the applicant had, indeed, driven west on Rowley Road, stopped at the Stop sign and then moved in front of oncoming traffic on to Nicholson Road. Nor could it be suggested that making an amendment to correct this mistake would have failed fully to reflect the true position ‑ contrast R v O'Brien [1981] WAR 305. This is not a situation where the court should have refused an application to amend the charge because the amendment was material to the merits of the charge or the accused's defence would be prejudiced in a way which could not be overcome by any adjournment ‑ Criminal Procedure Act s 132(8) and (10).
The responsibility for the correctness of a charge rests upon the prosecution, not on the court. If an amendment is required, and application to amend is sought, it should be by the prosecution, and as soon as possible ‑ see Go v The Queen (1990) 73 NTR 1; (1990) 102 FLR 299 and R v CAE [2008] QCA 177 and, for a more detailed commentary see Carter's Criminal Law of Queensland pars 572.30 and 572.35. There are, however, instances in which an amendment may be initiated by the court itself but even then the principle is that the court should invite the parties, particularly the defence, to make submissions about the proposed amendment before giving effect to it: R v West [1948] 1 KB 709; (1948) 32 Cr App R 152 and Ayles v The Queen [2008] HCA 6; (2008) 232 CLR 410
The proper role of the court has been explained by Kiefel J in Ayles at [79] where her Honour observed:
A question may be thought to remain concerning the absence of an application, on the part of the prosecutor, for the amendment. In many cases it will follow from the making of orders, without application having been made for them, that there has been an assumption of the prosecutor's role. So much was accepted at the outset of these reasons, in connection with the appellant's argument. It is not for a Judge to speculate about what course a party might take. And as Hayne J reminded in Libke v The Queen (2007) 230 CLR 559 at 586 ‑ 587 [72], it is not for a Judge to attempt to remedy the deficiencies of a party's case. As his Honour said, it is for a Judge to hold the balance between the contending parties and to ensure that the trial is conducted fairly. In the circumstances of this case, however, the making of the orders for amendment did not breach these obligations.
I am satisfied that substantial errors of procedure were made at the applicant's trial on 6 July 2011 and that these should be regarded as contributing, at least to a material degree, to the position adopted by the applicant when answering the charges.
That he may not have had any defence on the merits to a charged framed against him which properly reflected the facts being alleged does not excuse or justify his conviction for an offence based on materially different facts. It follows that there has been an error which justifies the grant of leave to appeal under the broad ground of appeal that there has been a miscarriage of justice. This successful aspect of the applicant's argument does fit explicitly within his elaborate 'particulars' at number 9.
The situation always was that the applicant was a litigant in person, with no legal background or training, and it was part of the responsibility of the learned magistrate to ensure that he was alerted to any material legal issues bearing on the case: see Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129; 84 FCR 438 [26] ‑ [30] and Tobin v Dodd [2004] WASCA 288. This litigant was left in a situation of uncertainty, deprived of rights to information about the charge to which he was entitled, and exposed, unrepresented, to a trial where the prosecution advanced a case which was not consistent with the details of the amended charge.
Scope of the grounds of appeal
As noted, submissions were advanced on behalf of the respondent that the grounds of appeal relied upon by the applicant were very broad and general alleging in effect simply a miscarriage of justice without providing informative particulars. Further submissions were made to the effect that the 'particulars' later advanced by Mr Busby extended beyond the scope of the notice of appeal to challenge the effect of the amendment made at the hearing on 3 May 2011. I have already accepted that point and disposed of it, while nevertheless concluding that the effects of the events on 3 May continued to have a bearing on the fairness and conduct of his trial on 6 July 2011.
The applicant did directly take the point that he had been convicted of an offence which was inconsistent with the allegations made in the prosecution notice. I am satisfied that this does come within the scope of the broad grounds of appeal advanced by this litigant in person and that the court is under an obligation to consider the record with a view to addressing points covered generally by the grounds of appeal. The approach to be taken is that identified by Gaudron J, with the agreement of Kirby and Callinan JJ, but with McHugh and Hayne JJ dissenting, in Gipp v The Queen(1998) 194 CLR 106, 116 where her Honour said:
The effect of s 668E(1) of the Criminal Code Act 1899 (Q) [the section dealing with an unsafe and unsatisfactory verdict] is to require the Court of Appeal, in an appeal against conviction, to determine whether there is any defect in the trial process occasioning a miscarriage of justice. Although in its reasons in this case, the Court of Appeal dealt only with the question whether the appellant's convictions were unsafe and unsatisfactory, in the sense that the jury should have entertained a reasonable doubt as to guilt, the actual decision was that there was no defect in the trial process occasioning a miscarriage of justice. That decision was wrong. And an appeal having been lodged, it is the duty of this Court to so hold, notwithstanding the limited nature of the matters argued in the Court of Appeal. It is because a Court of Criminal Appeal must decide whether there has been an error occasioning a miscarriage of justice and, on appeal, this court must decide whether that decision was right or wrong, that an appeal may succeed in this court on a point neither taken at trial nor in the subsequent appeal to the Court of Criminal Appeal. (footnotes omitted)
This, of course, is not an application for leave to appeal under s 30(3)(a) of the Criminal Appeals Act (in this State the modern equivalent of s 668E(1) of the Criminal Appeals Act of Queensland) but the applicant has expressly sought to advance a ground of appeal that his conviction has resulted in a miscarriage of justice, so obliging the Court to scrutinise the course of the proceedings to determine whether or not that broad allegation can be arguably advanced, and if so, established.
Remaining errors in the prosecution notice
The review of the course of proceedings has demonstrated that there was a series of errors of procedural law and, in the end, there was a conviction for the commission of a particular offence in circumstances which were not charged. Not only is that an error of law but it amounts to a miscarriage of justice and, as such, comes within the grounds of appeal proposed.
As already described, despite the amendment of 3 May 2011, the prosecution notice still contained errors - the variation between the facts as alleged and the evidence to support the charges. These inaccuracies were never corrected, notwithstanding that the case presented against Mr Busby and the evidence clearly showed the correct position. He was convicted of the charge alleged in the amended prosecution notice notwithstanding its erroneous assertions of the facts of the alleged offending.
An application to amend the prosecution notice against Mr Busby could have been made at any time during the course of the trial even as late as the delivery of the decision ‑ see R v Teong Sun Chuah [1991] Crim LR 463 and R v Tirado (1974) 59 Cr App R 80, R v Bonner [1974] Crim LR 479, and (generally) Archbold Criminal Pleading Evidence and Practice 1 ‑ 152; Robinson v Murweh Shire Council; Ex parte Robinson [1984] 2 Qd R 349 and Mitchell v Myers (53) (Dwyer CJ).
It is well established that an indictment is defective if it charges offences which are not disclosed by the depositions or evidence and fails to charge an offence which is so disclosed: R v Martin [1962] 1 QB 221, 227; (1962) 45 Cr App R 199, 204. In that case, Lord Parker CJ said:
An indictment which charges offences which are not disclosed in the depositions and fails to charge an offence which is, lacks the most essential quality of an indictment. It makes an accusation of a crime without cause when it should have made one with cause. This is what the indictment under consideration in this appeal did before it was amended. In our opinion, this indictment contained a latent defect which made it just as much defective within the meaning of s 5(1) [of the Indictments Act 1915] as if the defect had been a patent one.
See also R v Radley (1974) 58 Cr App Rep 394 and Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 173. Similarly, a court may not convict an accused of an offence proved by the evidence if it is a different offence from that charged (Ex parte Lovell; Re Buckley (supra) and R v Mulroy (1940) 57 WN (NSW) 159 CCA and Pigdon v Read [2008] WASC 218 and R v Chin (1985) 157 CLR 671 at 868 per Dawson J - see also Bauerhuit v Dean [2011] WASC 253.
This point was emphatically established by the High Court in Felix v Smerdon (1944) 18 ALJ 30. In that case, a person was charged with committing an offence at Clermont in Queensland on a particular date and the evidence showed that if an offence was committed it was committed in another town, Comet, 90 miles away and not before a later date. Nevertheless, the magistrate convicted applying s 65 of the Justices Act 1902 (NSW) concluding that a conviction was possible because this was merely a variation in the circumstances which would permit a conviction to be recorded. The High Court allowed the appeal and set aside the conviction. Latham CJ is reported as saying that in his opinion the difference between the evidence and the information was not merely a variance within the meaning of s 65 of the NSW Act but was far more and amounted to a different offence from the offence which was alleged in the information. The Chief Justice observed:
A variance exists where an offence which is charged is established with some variation or difference in detail; but where the offence is really a different offence, then the term 'variance' is not applicable, and more particularly in a case where the commission of an offence depends upon an act or omission at or during the particular time.
Starke J observed that s 65 could not be relied upon because the offence proved was not the offence charged. His Honour observed that time and place are not in all cases necessary or material averments, but there was no defect in substance in the case for the offence proved was different from the offence charged and there was no variance for the same reason.
A different result was reached on the facts in Parmeter v Proctor (1948) 60 WN (NSW) 48; (1948) 22 ALJ 525 per Herron J where the error in the information was to misstate the name of the street upon which the dangerous driving occurred and where it was shown that the driving had occurred on another street just after the accused had turned into that street from Lang Road. The decision depends very much upon its facts and upon the gravamen of the offence.
Parmeter v Proctor has been considered and followed in a series of other cases including Corporate Affairs Commission v Bain (1991) 5 ACSR 97; (1991) 55 A Crim R 73; Demetriou v DPP (2000) 32 MVR 45; [2000] NSWSC 1060, a decision of Studdert J of the Supreme Court of NSW, and Paulger v Hall [2003] 2 Qd R 294, a decision of the Queensland Court of Appeal. CAC v Bain was a case where there was an allegation that an officer of the CAC had commenced an appeal in his own name rather than in the name of the CAC. Although that was established, the court was satisfied that s 127 of the Justices Act (NSW) permitted the error to be amended. The court considered that such an error amounted to a variation which could be cured by amendment by analogy with decisions made in relation to s 65 of the NSW Justices Act, including Parmeter v Proctor and Crothers v Sheil (1933) 49 CLR 399, and that the notice of appeal in the particular case, although defective, was sufficient to attract the jurisdiction of the appellate court but should be amended. Demetriou v DPP was a case dealing with a prosecution for driving with an excess blood alcohol level where it was discovered, only when the magistrate began to give his decision, that the date in the charge was wrong and should have referred to a date 12 months earlier. Objection was taken by the defendant to an attempt to amend on the basis that the proposed correction would occur more than six months after the date of the offence and outside the relevant limitation period. Studdert J reviewed the authorities, including Parmeter v Proctor and concluded that the error could be addressed under s 65 of the Justices Act and that the defendant had not been misled or prejudiced in the conduct of his defence by the erroneous date in the charge. The magistrate permitted the amendment and convicted the driver, whose appeal was dismissed. In Paulger v Hall there were two complaints against the respondent for breaches of the Animals Protection Act 1925 (Qld). It emerged that there was a variance between the evidence led to establish the charges and the charges themselves whereupon the prosecutor applied to amend the charges to reconcile them with the evidence led. The magistrate refused the amendment with the result that the charges were dismissed. On appeal by the prosecution, the court held that the refusal of the amendment by the magistrate was wrong and the dismissal of the charges were then set aside.
No recourse to any legislative provision similar to equivalent to s 65 of the Justices Act of New South Wales, as it was, has been attempted in the present case. Under s 14(1)(d) of the Criminal Appeals Act this court is empowered to substitute a decision that should have been made by the court of summary jurisdiction and, by s 14(3), is not required to set aside or vary a decision of a court of summary jurisdiction because the court omitted to make any necessary finding of fact if the facts or evidence (a) in substance support the decision or (b) justify the finding, and in that case this court may instead either vary the decision or substitute another decision for it. However, these provisions do not have any potential application in the present case. They are, although not identical, somewhat analogous to the power of the Court of Appeal under s 13(5)(c)(i) of the Criminal Appeals Act, the antecedents of which have been examined many times by courts of ultimate authority. That section or its equivalent forerunners was examined by the High Court in Calabria v The Queen [1983] HCA 33; (1983) 151 CLR 670, 676 and again in Spies v The Queen [2000] HCA 43; (2000) 201 CLR 603. In Calbria the High Court said:
It is a condition precedent to the exercise of the power conferred by that section that the jury could on the information have found the accused guilty of some other offence, ie, the substituted verdict must be one which the jury could have returned at the trial on the information which was, in fact, presented.
This principle was applied and followed by the Court of Appeal in McKeagg v The Queen [2006] WASCA 26; 162 A Crim R 51 [24] (Pullin JA), [64] (Murray AJA).
Mr Busby could not have been convicted on this prosecution notice of the offence established by the evidence because that evidence did not prove the offence charged. It follows that there is no power for this court to substitute a conviction for the offence which has been established by the evidence because unless the prosecution notice had been amended during the course of the trial to advance the correct allegations, he could not have been convicted of such another offence on the charge before the court.
The situation is the same as that described by the court in Calabria v The Queen (677) where Gibbs CJ, Murphy, Brennan, Deane and Dawson JJ said:
For these reasons the conviction must be quashed. If the information had been amended appropriately the evidence would have supported a conviction under s 5(2)(a), but we cannot of course order a new trial on the information as presented. However the quashing of the conviction will not prevent the Crown, if it is so advised, from presenting an information charging the applicant with an offence under s 5(2)(a).
In the circumstances, therefore, the applicant having established that there was a series of procedural errors in the course of this prosecution which have led to a miscarriage of justice by him being convicted of an offence which was not established by the evidence, notwithstanding that the evidence established that he committed an offence of the kind alleged but on facts which were not alleged, he is entitled to succeed. Leave to appeal should be granted and the conviction quashed.
33
3