Director of Public Prosecutions v Johnstone (No 2)

The Director of Public Prosecutions appealed against a decision of a Magistrate dismissing charges of dangerous driving contrary to section 25 of the Road Safety Act 1986. The Supreme Court allowed the appeal, quashed the conviction and ordered a new trial. The accused applied to amend the Supreme Court order to include a finding of conviction for the lesser offence of careless driving contrary to section 25 of the Road Safety Act 1986, and a sentence. The Magistrate’s decision had been quashed and a new trial ordered because the Magistrate had failed to consider whether the accused’s driving was dangerous as opposed to merely negligent. The Supreme Court concluded that the Magistrate had conflated the two standards of proof. The accused sought to amend the Supreme Court order on the basis that the Magistrate had not considered the evidence of a witness, whose evidence had only become available at the hearing of the appeal. The accused submitted that if the Magistrate had been aware of this evidence, they would have found the accused guilty of the lesser offence of careless driving. The Court considered the statutory and inherent power to amend orders and concluded that the application should be refused. The Court found that the Magistrate’s failure to consider the appropriate standard of proof was the critical error and that the evidence of the additional witness would not have led the Magistrate to a different conclusion. The Court concluded that if it had been informed of the additional evidence at the time it made the order, it would not have made the order now sought by the accused. The application was refused.