Director of Public Prosecutions (NSW) v Knight

[2006] NSWSC 646

Reported Decision: 162 A Crim R 555

New South Wales

Supreme Court

CITATION:	DPP (NSW) v Knight [2006] NSWSC 646
HEARING DATE(S):	19/06/06
JUDGMENT DATE :	11 July 2006
JUDGMENT OF:	Whealy J at 1
DECISION:	The orders are as follows: 1. An order pursuant to s 57(1)(c) of the Crimes (Local Court Appeal & Review) Act 2001 ("Appeal and Review Act") granting the plaintiff, so far as it is required, leave to appeal against the order of the magistrate made on 30 November 2005 at Penrith Local Court denying the application made by the prosecutor in the Local Court proceedings to amend the indictment. 2. An order pursuant to s 59(2) of the Appeal and Review Act that the order of the magistrate made on 30 November 2005 at Penrith Local Court dismissing proceedings against the defendant for the offence of fail to supply particulars of driver, s 21(1)(a) of the Road Transport (General) Act 1999 be set aside. 3. An order that the matter be remitted to the Local Court to be dealt with according to law. 4. An order that the defendant pay the costs of the plaintiff. The defendant, if suitably qualified, is to have a Certificate under the Suitors Fund Act in respect of the costs.
CATCHWORDS:	Offences - time of the essence - amendment of indictment - powers to amend - injustice an unfair trial
LEGISLATION CITED:	Road Transport (General) Act 1999 s 21(a) Criminal Procedure Act 1986 Crimes (Local Court Appeal & Review) Act 2001 ("Appeal and Review Act") Suitors Fund Act
CASES CITED:	Halsbury's Laws of England (4th Edition) Vol II Rodney John Stringer [2000] 116 A Crim R 198 at 202 R v VHJ (NSWCCA 7 July 1996 unreported) The King v Dean (1932) NZLR 753 R v Kringle (1953) TAS SR 52 R v Pfitzner (1976) 15 SASR 171 R v Westerman (1991) 55 A Crim R 353 Demetrriou v Director of Public Prosecutions & Anor [2000] NSWSC 1060 per Studdert J at (19)) Borodin & Anor v R [2006] NSWCCA 83 at {20-24] per Howie J
PARTIES:	Director of Public Prosecutions (NSW) v Jay Robert Knight
FILE NUMBER(S):	SC 2006/11093
COUNSEL:	Ms C.A. Webster - Plaintiff Mr. P. Nemetalla - Defendant
SOLICITORS:	Solicitor for Public Prosecutions (NSW) - Plaintiff Reimer Winter Williamson - Defendant
LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Her Honour Magistrate G. Knight
LOWER COURT DATE OF DECISION:	30/11/05

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

WHEALY J

TUESDAY 11 July 2006

2006/11093 - DIRECTOR OF PUBLIC PROSECUTIONS
(NSW) v Jay Robert KNIGHT

JUDGMENT

1 HIS HONOUR: On Christmas Day, 25 December 2004, an unknown person riding a motor cycle, registration number VVX-34 had the misfortune to have behind him a vehicle driven by one Superintendent Feszczuk the Commander for the Local Penrith Police Area. I say the driver was unfortunate because, in plain view of Superintendent Feszczuk, the motorcycle was observed to carry out a highly dangerous manoeuvre in the vicinity of Victoria Bridge, a utility which crosses the Nepean River. In fact, the motorcycle was ridden across the bridge completely on its rear wheel.

2 The police officer caused enquiries to be made and ascertained that the owner of the motorcycle was one Jay Robert Knight, the defendant in these proceedings.

3 Superintendent Feszczuk made contact with the defendant and subsequently the defendant attended Penrith Police Station where a formal demand in terms of s 21(1)(a) of the Road Transport (General) Act 1999 was made. The defendant was not required however to make an immediate reply to this request but was given time to provide certain information for the benefit of the police. The defendant maintained, it would seem, that it was not he who had driven the motorcycle on Christmas Day 2004 as he had been elsewhere on that day.

4 Sometime later, on 21 February 2005, the defendant returned to Penrith Police Station with his solicitor and participated in a recorded interview. Once again, a formal demand was made of him in terms of s 21(1)(a) of the Road Transport (General) Act 1999. It appears that the defendant did not provide the information requested of him on this day or at any later time. He maintained (see record of interview Q. 111) he did not know who the rider of the bike had been.

5 It may be convenient if I set out at this stage the provisions of s 21 of the legislation as it stood at the relevant time: -

“Section 21(1)
If the driver of a motor vehicle is alleged to have committed an offence under the Road Transport legislation:
(a) The responsible person for the vehicle, or the person having the custody of the vehicle, must, when required to do so by an authorised officer, immediately give information (which must, if so required, be given in the form of a written statement signed by the responsible person) as to name and home address of the driver, and
…
(2) It is a defence to a prosecution for an offence under sub-section (1)(a) if the defendant proves to the satisfaction of the Court that he or she did not know and could not with reasonable diligence have ascertained the driver’s name and home address”.
(Maximum penalty: 20 penalty units, that is $2200)”.

6 Proceedings for an offence were commenced against the defendant by the issue of a Court Attendance Notice (CAN). Section 172 of the Criminal Procedure Act 1986 authorises the commencement of proceedings in lower courts by the issue and filing of a CAN in accordance with this Division 1 of Part 2 of the Act. The contents of a CAN are established by s 175(3). In the present case, the notice detailed the offence as one under s 21(1)(a) of Road Transport (General) Act 1999. The offence was stated in the following terms: -

“Responsible person – custodian failed to supply particulars of driver between 12.50pm and 12.55pm on 25 December 2004 at Penrith.
Did fail, when required to do so by Superintendent Zenio Feszczuk, an authorised officer, to immediately give information as to the name and home address of the driver of a motor vehicle, to wit, VXX-34 who was alleged to have committed an offence, to wit, negligent driving, under the Road Transport legislation, the said Jay Robert Knight being the responsible person for the said vehicle”.

7 A brief was served in respect of the charge and the matter ultimately came on for hearing before the learned magistrate on 30 November 2005. Before any evidence was called or documents were tendered, there was a preliminary argument in respect of the prosecutor’s application to amend the first two lines of the charge set out in the CAN.

8 A cursory reading of the charge would reveal that there was an obvious error in relation to the date when the responsible person had been required to supply the information mentioned in s 21(1)(a) of the Road Transport (General) Act. Clearly that request had not been made on 25 December 2004. Rather, the act of negligent driving had been observed on that date. It was this obvious error that led the police prosecutor to ask the magistrate to amend the charge set out in the CAN by the deletion of the words “between 12.50pm and 12.55pm on 25 December 2004” and to insert in their place the words “about 12pm on 21 February 2005”.

9 The detail of what happened next is set out in annexure “A” to the affidavit of Margaret Mary McGlynn sworn on 7 March 2006. This annexure contains the transcript of the argument before the Magistrate on 30 November 2005, including the decision given. In general terms, the prosecutor (with the agreement of the defendant) placed before the magistrate an outline of the evidence that would be led in the proceedings. This included the matters to which I have already made reference together with certain other factual matters, which it is not necessary to detail for the purpose of these proceedings.

10 There were essentially three strands to the argument presented on behalf of the defendant before the learned magistrate. First, it was argued that the power to amend the charge could not, or at least should not, be exercised because of the provisions of s 16(1)(g) of the Criminal Procedure Act 1986. Secondly, the defendant was left in a position of uncertainty because of the fact that two demands had been made upon him for the relevant information. The first request has been made on 30 December 2004 and the second was made on 21 February 2005. The defendant was, as a consequence, left in a state of uncertainty as to the true basis upon which the charge was to proceed against him. Thirdly, the defendant pointed out, no doubt correctly, that as at the 30 November 2005, when the matter came on for hearing before the learned magistrate, a fresh CAN could not have been issued because more than six months had elapsed from the date of the alleged offence.

11 After hearing submissions from the parties, the learned magistrate decided that the application to amend the charge should be refused. The gravamen of her Honour’s decision appears to be her view that the outcome of the application turned upon the construction of s 21(1)(a) of the Road Transport (General) Act 1999. Her Honour said this:

“The consideration really boils down to ‘Is it an essential ingredient or not?’
Now I don’t have the advantage of having any of the cases referred to except Dimetriou’s case which I have briefly read, and that is one, which can be clearly distinguished on these facts. I do have the advantage of having Butterworth’s Criminal Practice and Procedure, and the commentary under s 16 of the Criminal Procedure Act , and a case there referred to as .. (not transcribable) .. Stringer 2000, 116 A Crim R 198. And the summary of circumstances in which time may become the essence of an offence were considered. And four examples were given of where time is of the essence or four situations only where time would be of the essence in a particular offence. And they are listed at p 6303 as follows:
1. Where an act is criminal only when done within a certain time of some other act or event.
2. It is an essential ingredient of a particular offence that certain consequences should follow a particular act.
Three and 4 I won’t go into, in my view they don’t apply.
I do find the defence argument persuasive upon lengthy consideration, and this is a very difficult matter to determine, as to Stringer’s case and the situation where number 2 example as referred to in Stringer, occurs. And, in my view, that is what occurs in this particular situation. It is an unusual offence in that it requires an act by the authorised officer followed by a requirement for the person who is the custodian of the vehicle, or the responsible person, to immediately provide information.
What also makes this situation more difficult and may, if I am wrong as far as essential ingredients are concerned, may involve unfairness to the defendant is that there were two demands two months apart. That certainly does complicate the issue. However, I will make a finding in this preliminary state that
I DO FIND THAT THE TIME IS AN ESSENTIAL ELEMENT OR AN ESSENTIAL INGREDIENT AND, THEREFORE, THE APPLICATION TO AMEND MUST BE DENIED.”

12 One the learned magistrate had made this ruling, the prosecutor then indicated that he was instructed to offer no evidence in relation to the matter. In that situation, the charge was dismissed.

13 The proceedings come before this Court by way of a further amended summons seeking, in so far as it is necessary, leave to appeal against the order of the magistrate made on 30 November 2005 denying the application made by the prosecutor to amend the charge in the CAN. Secondly, an order is sought pursuant to s 59(2) of the Crimes (Local Courts Appeal & Review) Act 2001 that the order of the magistrate made on 30 November 2005 at Penrith Local Court dismissing the proceedings be set aside.

14 It will be seen that the primary basis upon which the proceedings have been launched is the assertion that the learned magistrate erred in law in finding that time was of the essence in an offence under s 21(1)(a) of the Road Transport (General) Act; and was consequently in error in refusing to allow the prosecution permission to amend the particulars of the offence contained in the CAN.

15 There is no challenge by the defendant to the jurisdiction of this Court to hear the appeal. Indeed, the defendant is content to rely in essence upon the submissions, which were made before the learned magistrate. The defendant has urged this Court to endorse the findings made by the learned magistrate and to uphold her Honour’s reasoning.

Resolutions of the issues

16 Before dealing with the central issue, it may be convenient to note first the powers available to the learned magistrate to permit the amendment of the Court Attendance Notice. These powers are to be found essentially in ss 20 and 21 of the Criminal Procedure Act 1986. These sections expressly apply to a CAN by which criminal proceedings are commenced (s 15 Criminal Procedure Act 1986).

17 An indictment may not be amended after it is presented except by the prosecutor with the leave of the Court, or with the consent of the accused (S 20). Where the Court is of the opinion that an indictment is defective, but, having regard to the merits of the case, it can be amended without injustice, the Court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case (s 21 Criminal Procedure Act 1986).

18 Thus, the power to amend an indictment, even a defective one, is clearly bestowed. The question is whether it can be amended “without injustice”.

19 It is against the background of these powers that one comes to consider s 16 of the Criminal Procedure Act. This section provides that an indictment is not bad, insufficient, void, erroneous or defective on a number of stated grounds. Relevantly, one of those grounds is contained in s 16(1)(g). This is in the following terms: -

“(g) Except where time is an essential ingredient, for omitting to state the time at which an offence was committed, the stating the time wrongly or for the stating the time imperfectly.”

20 The present case, however, was not decided on the basis of the general power in s 21. Rather the learned magistrate looked to see whether, where an offence is charged under s 21(1)(a) of the Road Transport (General) Act 1999, time is an essential ingredient. Her Honour essentially took the view, as I have earlier recounted, that if time be an essential ingredient, then s 16(g) demanded that the application to amend should be refused.

21 Now, I am not be any means sure that this basic premise is entirely or universally correct. It may be that s 21 is sufficiently wide to allow, in some cases, amendment of a date even where time is of the essence of the offence. But it is not necessary for me to decide this and, as it was not argued before me, I expressly refrain from expressing any opinion in this regard.

22 I have come to the conclusion, however, that, on its proper construction, time is not an essential ingredient in a charge brought under s 21(1)(a) of the Road Transport (General) Act 1999. I shall now explain my reasons for this conclusion.

23 The notion “where time is of an essential ingredient” may arise in a number of different situations. There are two principal contexts in which it might properly arise. The first is where, upon its proper construction, the statute creating the offence itself makes time of the essence of the offence.

24 The learned authors of Halsbury’s Laws of England (4th Edition) Vol II point out at footnote 4 of para 207 that: -

“Time is of the essence of the offence (1) when an act is criminal only if done within a certain time of some other act or event (eg persons in possession of firearms within five years from the date of release of certain sentences, contrary to the Firearms Act 1968 , s 21(2));
(2) When it is an essential ingredient of a particular offence that certain consequences should follow a particular act (eg in cases of homicide it is essential to prove that the death of the victim took place within a year and a day from the time when the act which caused death was done (in such a case the time stated in the indictment should be the day on which the act was done);
(3) When it is an essential ingredient of a particular offence that the act alleged was committed between certain hours of the day or night (eg night poaching or making signals to smuggling vessels); and
(4) When the prosecution for a particular offence must be commenced within a certain time of the commission of the criminal act alleged”.

25 It will be recalled that it was the first two of these categories that enlivened the learned magistrate’s interest and led her to the conclusion that time was of the essence of the present offence. Unfortunately, her Honour took the statement of these matters from an abbreviated reference to them in the judgment of Grove J in Rodney John Stringer [2000] 116 A Crim R 198 at 202. The reference to these four categories in Stringer did not include the examples given in the English text. The abbreviated form of the categories deprives the phrases of clarity and results in a certain degree of ambiguity. The examples I have mentioned make it clear, in my view, that, by way of contrast, the section under consideration in the present matter does not make the date an essential ingredient in the offence. Indeed, the section is quite indifferent to the date or time of the offence.

26 It is true, of course, that there is a temporal element in the central ingredient in the offence created by s 21(1)(a). For example, the responsible person must, when required to do so by an authorised officer immediately give information. The day itself, or the time of the day for that matter, when a request is made is of no material consequence to the establishment of the central ingredient. In that sense, the day when the request is made is not an essential ingredient.

27 A contrasting situation might be imagined where, for example, the liquor laws of the State prohibited the sale of liquor in a hotel public bar on Good Friday. An indictment for that charge would need to specify the particular day as an essential ingredient of the charge.

28 The second way in which time may be regarded as an essential ingredient in a offence is described by Gleeson CJ (with whom Handley JA and Studdert J agreed) in R v VHJ (NSWCCA 7 July 1996 unreported). At pages 13-14, Gleeson CJ said: -

“As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualification are of present relevance. First, in some circumstances, the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Second, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable.”

29 Gleeson CJ made the point that there are many examples of cases in which it has been held that time has been made of the essence of the offence, or, to use another expression adopted by judges, has been made “vital” by reason of circumstances which give rise to qualifications of the kind he had mentioned in the passage set out above. Some of the cases mentioned by Gleeson CJ included The King v Dean (1932) NZLR 753, R v Kringle (1953) TAS SR 52; R v Pfitzner (1976) 15 SASR 171 and R v Westerman (1991) 55 A Crim R 353.

30 Generally, these cases involved offences of sexual interference of one kind or another. Although the dates contained in the indictments in each of these cases covered a reasonably broad spectrum of time, the evidence of the complainant often narrowed the date of the offence to one specific occasion. It was in this sense, as I understand it, that Gleeson CJ suggested that the particular date had been made ‘vital” by force of the complainant’s evidence so as to make it unfair for the Crown to depart from that date as the date of the alleged offence, notwithstanding the width of the time frame in the relevant indictment.

31 It is quite clear however that neither of the two qualifications expressed by Gleeson CJ in VHP have any applicability to the present offence. The date of the offence was never made “vital” in the outline of the Crown case, nor was it likely to be so when the evidence was given.

32 The position here is, as the plaintiff submitted, more akin to the situation described in The Queen v Pfitzner where at 185 Bray CJ said: -

“Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the event of a certain occasion, it may not matter if the date of that occasion is misstated if the occasion itself is clearly identified and both parties directed their cases towards it: see c/f Page v Butcher (1957) SASR 165. Obviously if a man is charged with committing an offence on Saturday and comes prepared with an alibi for Saturday, he cannot be convicted of committing the offence on Friday or Sunday, unless perhaps the information is amended and the trial adjourned to enable him to meet the new case.”

33 This leads me to the third and final matter referred to by the learned magistrate. It was clearly a concern to her Honour that the brief of evidence submitted in the present matter suggested that two separate demands had been made of the defendant. Clearly this had the capacity to lead to some possible confusion on the part of the defendant as to which occasion was the one to be relied upon by the prosecution.

34 In argument before me, it was suggested that the defendant may have been in a state of misapprehension as to what was intended in this regard. Was it being required of him that he comply with the demand made on 30 December 2004? Was it being required of him that he comply with the demand later made on 21 February 2005? Which was the offence charged?

35 Whatever may have been the state of the defendant’s mind on the morning of 30 November 2005, it is clear that the application made by the prosecutor was proffered not merely to correct an obvious error in the CAN but also to put beyond doubt that the date of the offence relied upon by the prosecution was in fact 21 February 2005. That having been clarified, it would have been open to the defendant, if any level of embarrassment or uncertainty remained, to seek an adjournment of the hearing once the date of the offence had been amended. The defence however, expressly disavowed any application for an adjournment.

36 In my view, the true situation which had developed by 30 November 2005 was simply this: the defendant, as he was entitled to do, was very well aware of the mistake in the Court Attendance Notice. Rather than draw this to the prosecution’s intention at an earlier stage, a tactical decision was made to wait until the hearing by which time it would have been impossible to issue a fresh CAN for this offence. A further tactical decision was made to resist the application to amend on the basis argued before the learned magistrate. Indeed, the tactical decision paid dividends as the magistrate acceded to the defence arguments and refused to allow the amendment. I do not consider that the defendant would have been in any way taken by surprise to learn that the prosecution intended to rely upon the failure to comply with the demand made on the second occasion, namely 21 February 2005. It could not be said that an amendment to the initiating process would have carried with it any injustice or resulted in an “unfair trial” (see Borodin & Anor v R [2006] NSWCCA 83 at [20-24] per Howie J.

37 For the foregoing reasons, I conclude that the offence under s 21(1)(a) of the Road Transport (General) Act does not, upon its proper construction, require that the day or time of the day is to be regarded as an essential ingredient of the offence. Secondly, I conclude that it was open to the learn magistrate to permit the amendment of the CAN to insert, as the date of the offence, 21 February 2005. Thirdly, an amendment of that kind would not have required the issue of a fresh Court Attendance Notice as at November 2005 (Demetriou v Director of Public Prosecutions & Anor [2000] NSWSC 1060 per Studdert J at (19)).

38 The matter should be remitted to the Local Court to be dealt with in accordance with the conclusions and opinions I have stated in this decision. It will be a matter for the learned magistrate to determine whether the matter should proceed before her and when it should proceed. It will also be a question for the magistrate to determine whether any further adjournment is necessary to enable the defendant to prepare his case once the amendment has been granted, if that be the decision of the Court.

39 Accordingly I make the following orders: -

1. An order pursuant to s 57(1)(c) of the Crimes (Local Court Appeal & Review) Act 2001 (“Appeal and Review Act”) granting the plaintiff, so far as it is required, leave to appeal against the order of the magistrate made on 30 November 2005 at Penrith Local Court denying the application made by the prosecutor in the Local Court proceedings to amend the indictment.

2. An order pursuant to s 59(2) of the Appeal and Review Act that the order of the magistrate made on 30 November 2005 at Penrith Local Court dismissing proceedings against the defendant for the offence of fail to supply particulars of driver, s 21(1)(a) of the Road Transport (General) Act 1999 be set aside.

3. An order that the matter be remitted to the Local Court to be dealt with according to law.

4. An order that the defendant pay the costs of the plaintiff. The defendant, if suitably qualified, is to have a Certificate under the Suitors Fund Act in respect of the costs.

**********