Damien James Wade v William David Evans - [2003] ACTSC 85

DAMIEN JAMES WADE v WILLIAM DAVID EVANS
[2003] ACTSC 85 (31 October 2003)
APPEAL FROM MAGISTRATES COURT - Motor vehicle offences – offences of drive whilst licence cancelled, use unregistered registrable vehicle and use uninsured vehicle - charge of drive whilst cancelled amended by leave at hearing in Magistrates Court - convictions recorded in respect of each offence.
POWER OF MAGISTRATES COURT TO AMEND A CHARGE – Magistrates Court Act 1930, s 28 – appropriate limits of the power to amend – amendment permitted when defect in charge but not when offence convicted different to offence originally charged.
IDENTIFICATION EVIDENCE – Evidence Act 1971, s 114 - reliability of identification evidence – driver stopped for random breath test – appellant identified by police in photographic licence – driver’s details given to police – police proceeded by way of summons ‑ finding by magistrate that appellant was the driver – evidence admissible pursuant to s 114 of the Evidence Act – appeal against conviction on the basis of identification not made out.
Road Transport (Driver Licensing) Act 1999, s 32(1)(a), s 32(3)(a)
Road Transport (Vehicle Registration) Act 1999, s 18(1)
Road Transport (General) Act 1999, s 162(1)
Magistrates Court Act 1930, s 28
Evidence Act1971, s 114
Schultz v Pettitt (1980) 25 SASR 427
Surman (1996) 85 A Crim R 361
D’Ambrosio v Fearnside [2002] ACTSC 126
Flanagan v Remick (2001) 35 MVR 289
Ex parte Findlay; Re James (1953) 70 WN (NSW) 115
Ex parte Thomas; Re Olzen (1947) 64 WN (NSW) 21
Felix v Smerdon (1944) 18 ALJR 30
R v Thomason (1999) 139 ACTR 21
R v Reed & Carberry [2003] ACTSC 6
Johnson v Giumelli [2003] ACTSC 58
Ellem (1994) 75 A Crim R 370
Lunn RM (1990), Criminal Law South Australia, Butterworths
ON APPEAL FROM THE MAGISTRATES COURT
No SCA 32 of 2003
Judge:     Connolly J
Supreme Court of the ACT
Date:     31 October 2003
IN THE SUPREME COURT OF THE       )
  )          No SCA 32 of 2003
AUSTRALIAN CAPITAL TERRITORY    )
ON APPEAL FROM THE MAGISTRATES COURT
BETWEEN:DAMIEN JAMES WADE
Appellant

AND:WILLIAM DAVID EVANS
Respondent

ORDER
Judge:  Connolly J
Date:  31 October 2003
Place:  Canberra
THE COURT ORDERS THAT:
1.The appeal against conviction in respect of matter No CC2002/6694 is upheld.

2.The appeals against conviction in respect of matters No CC2002/6695 and No CC2002/6696 are dismissed.

1. This is an appeal from a decision of the Magistrates Court on 29 May 2003 where Special Magistrate Symons convicted the appellant, Mr Wade, of three offences relating to driving a motor vehicle when he did not have a driver’s licence, and when the vehicle was unregistered and uninsured.

2. The prosecution case was that on 18 July 2002 Detective Senior Constable Evans, the informant, and Sergeant Isselmann were conducting a random breath testing operation (RBT) at about 8 pm near the Gungahlin Town Centre in the Australian Capital Territory. The driver of a white Holden Commodore was pulled over for random breath testing. The…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2003] ACTSC 85
Decision Date: 31 October 2003

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory was presented with an appeal from Damien James Wade against convictions made by the Magistrates Court. Wade was found guilty of driving a vehicle while his license was cancelled, using an unregistered vehicle, and using an uninsured vehicle. The appeal focused on two primary issues: the appropriateness of the Magistrates Court amending the charge against Wade to one of driving while disqualified rather than while his license was cancelled, and the reliability of the identification evidence used by the police to establish Wade's involvement in the offenses.

Regarding the amendment of the charge, the court considered whether the Magistrates Court had the authority to change the charge from "drive while licence cancelled" to "drive while disqualified." The court cited previous legal precedents and statutory provisions that permit amendments only when there is a defect in the charge or a variance between the charge and the evidence, but not when the amended charge constitutes a different offence. The court concluded that the amendment constituted a different offence, and thus the Magistrates Court erred in permitting such a change. Consequently, the appeal against the conviction for driving while the license was cancelled was upheld.

The court also examined the reliability of the identification evidence provided by the police. The identification process involved comparing the driver's appearance to a photographic driver's license in Wade's name, and the police officers maintained that the resemblance was sufficient to identify Wade as the driver. The court found that the identification process was reliable and that the Magistrates Court was justified in accepting the police identification evidence over Wade's denial and that of his girlfriend. The appeal against the convictions based on the identification evidence was thus dismissed.

The final orders of the court were to uphold the appeal against the conviction for driving while the license was cancelled and to dismiss the appeals against the convictions for using an unregistered and uninsured vehicle.

Orders