Glouftsis v Police - [2014] SASC 136

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GLOUFTSIS v POLICE
[2014] SASC 136
Judgment of The Honourable Justice Kelly
19 September 2014
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTATION - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
Appeal against conviction – appellant found guilty of assault causing harm – whether information, when considered in light of the prosecution opening and evidence, affected by latent duplicity – whether the prosecutor ‘elected’ to pursue the aggravated offence - whether appellant has suffered prejudice in the conduct of his defence.
Held: the prosecution opening and evidence disclosed only one offence – although the witnesses called by the prosecution differed as to certain particulars they were describing the same single event – only one application of force was alleged and described in evidence – the information is not affected by latent duplicity – the prosecutor made no ‘election’ and, in any event, no prejudice has been occasioned upon the appellant.

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
CRIMINAL LAW - PROCEDURE - VERDICT - ALTERNATIVE VERDICTS
Appellant charged with offence of aggravated assault causing harm - Magistrate returned a verdict of guilty to the basic offence of assault causing harm – to return alternative verdict Magistrate utilised s 25 of the Criminal Law Consolidation Act 1935 (SA) (CLCA) – whether Magistrate acted ultra vires.
Held: the Magistrate was not empowered to utilise s 25 of the CLCA to return an alternative verdict to a lesser offence – the offence for which the appellant was charged is contained in Division 7 of the CLCA but s 25 applies only to Division 7A.
Whether Magistrate had an alternative mechanism available, either by common law or statute, to return a verdict in respect of the basic offence – whether the basic and aggravated offences contained in s 20(4) of the CLCA are separate and distinct.
Held: Section 20(4) of the CLCA creates only one offence of assault causing harm which can be committed with or without aggravating circumstances – accordingly, the Magistrate had the power to return a verdict in respect of a basic assault because that is the offence contrary to s 20(4) which was charged – the Magistrate, having found the basic offence proved absent the aggravated feature, was entitled to return a verdict to that effect - the Magistrates Court Rules 1992, as presently drafted, leave Magistrates without power to return an alternative verdict in any of those matters where they are dealing with a statutory offence under the CLCA unless the alternative offence has been charged in the alternative.
If no such alternative mechanism available, whether the Magistrate had the power to amend the information to reflect the facts as he found them to be.
Held: the Magistrate had the power to amend the information – the only bar to amendment is whether the appellant has been substantially prejudiced by the respondent’s failure to plead separately the basic offence – the appellant, in the circumstances of this case, has suffered no prejudice – if it was necessary, the appeal would have been allowed but only for the purpose of amending the information such that it pleads the basic offence.
The appeal is dismissed.
Criminal Law Consolidation Act 1935 (SA) s 20(4), s 23, s 25; Customs Act 1901 (Cth) s 233B(1)(cb); Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA); Juries Act 1927 (SA) s 57; Summary Procedure Act 1921 (SA) s 114, s 181; Justices Act 1921 (SA) s 130; Magistrates Court Rules 1992 r 24, referred to.
R v Tilley (2009) 105 SASR 306; R v Sumner; R v Fitzgerald (2013) 117 SASR 271; F, BV v Magistrates Court of South Australia & Anor (2013) 115 SASR 232; Kingswell v The Queen (1985) 159 CLR 264 ; Wellington v Police (2009) 105 SASR 215, discussed.
Eades v R (1991) 57 A Crim R 151; Johnson v Miller (1937) 59 CLR 467; S v The Queen (1939) 168 CLR 266; Walsh v Tattersall (1996) 188 CLR 77; R v Staker (2011) 110 SASR 274; R v Kerin (2013) 116 SASR 316; R v Hietanen (1989) 51 SASR 510; Schultz v Pettitt (1980) 25 SASR 427, considered.

GLOUFTSIS v POLICE
[2014] SASC 136
Magistrates Appeal: Criminal
KELLY J.

Following a trial in the Mount Barker Magistrates Court, the appellant was convicted on 16 May 2014 of one count of assault causing harm contrary to s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). By his Notice of Appeal dated 6 June 2014, the appellant appeals against his conviction and seeks an order that an acquittal be entered, or, alternatively that the matter be re-tried in the Magistrates Court.
Two issues arise on this appeal. The first is whether in the circumstances the charge was duplicitous in the sense that there was latent duplicity, and second, whether it was open to the Magistrate to convict the appellant of the basic offence of assault causing harm (the basic offence) in circumstances where the information upon which the appellant was charged particularised an ‘aggravated offence’ only.
In the event that the second is answered in the affirmative, a further issue arises as to the appropriate mechanism by which the Magistrate ought to have returned his verdict of guilty to the basic offence.
Background
The events which gave rise to the charge were alleged to have taken place at a wedding reception on 25 March 2011. The reception was attended by the appellant, who was the best man, and Mr Allan Marcu, the complainant, who was a cousin of the groom. While at the wedding reception, the complainant had cause to admonish the appellant for conduct which he, the complainant, thought to be inappropriate. It was the prosecution case that the appellant reacted to the admonishment by throwing a whisky glass into the face of the complainant causing injuries that required 36 stitches.
On 10 April 2012, the police filed an information in the Magistrates Court. The information was in the following terms:
Offence Details
On the 25^th day of March, 2011 at Houghton in the said State assaulted Allan Marcu and thereby caused harm to him.
Section 20(4) of the Criminal Law Consolidation Act, 1935.
This is an aggravated offence.
It is further alleged that the circumstances of aggravation are that the offender used an offensive weapon to commit, or when committing, the offence.
This is a minor indictable offence.
At trial the prosecution called two witnesses, including the complainant. The appellant elected not to give evidence.
In his opening address, the prosecutor told the Court that the evidence of the complainant and the witness, Mr Troy Bugg, were in some respects conflicting. In particular, the Court was told that the complainant would give evidence to the effect that the appellant threw a whisky glass at him, whereas Mr Bugg would tell the Court that the appellant punched the complainant ‘through’ a glass being held by the complainant. The following exchange occurred:
App Keal:Yes Your Honour. We do concede that there is another view by Mr Bugg that the Court may prefer, may chose to accept but the fact remains we proceed on the Aggravated Assault Cause Harm that is what our position is Your Honour.
Mr Noblet:Well Your Honour I just need to be very clear. Obviously Your Honour the aggravation is the use of a weapon namely the glass and I want to be very clear if I am meeting a case where the prosecution case is that the aggravation relates to Mr Glouftsis using the glass as a weapon and throwing it at the victim. I want to be crystal clear that that is the case that I am meeting and that is at the outset so I gather that is the position.
His Honour:    That is the case isn’t it.
App Keal:Yes Your Honour that is our position we proceed on that charge.
His Honour:    And if for instance I found that I preferred the version described by the other witness that is that the defendant punched through the glass held by the victim what do I do then if I find that proved and the other version not.
App Keal:My understanding is that it is open to the Court to make that finding and then that the aggravating factor not being made out still proceed as an assault cause harm.
His Honour:    Mr Noblet?
Mr Noblet:Your Honour I don’t disagree with that – I just want to be clear as to what case I am meeting at this point in time.
His Honour:    I agree with that also I just want to clear the air before we start.
It can be seen from the foregoing extract from the transcript that notwithstanding that the prosecutor proceeded on the basis that the complainant’s evidence ought to be accepted over Mr Bugg’s, it was conceded that the Magistrate may prefer Mr Bugg and that, in that event, it was open for the Magistrate to find only the basic offence proved.
Ultimately, the Magistrate preferred the evidence of Mr Bugg and found that the appellant punched the complainant with a closed fist to his face at a time when the complainant was holding a glass to his mouth. His Honour found the charge of aggravated assault causing harm not proved but instead, relying upon s 25 of the CLCA, returned a verdict of guilty to the basic offence.
The Appeal
On appeal the appellant raised initially two grounds; however, ground 1 was abandoned prior to the hearing of the appeal. By his remaining ground, the appellant contends that the Magistrate erred in returning a verdict of guilty to the basic offence, the particulars of which were materially different to those relied upon by the prosecution at the commencement of trial.
The appellant contends that it was not open to the Magistrate to return a verdict of guilty to the basic offence and that the information upon which the appellant was charged was, when considered in light of the prosecution opening and the evidence to be called in support of the charge, duplicitous.
The appellant further argues that, having regard to the alleged duplicity, by informing the Magistrate of his intention to proceed with the aggravated offence the prosecutor made an election, which had the effect of binding him to prove the circumstances of offending as was to be described by the complainant.
Conversely, the respondent to the appeal argues that the evidence disclosed only one actus reus, and therefore that no issue of duplicity arises; and, that a guilty verdict for the basic offence was open on the evidence.
I deal with each issue in turn.
Duplicity
An information is duplicitous if the conduct upon which a single count contained therein is based discloses more than one offence: Eades v R;[1] Johnson v Miller.[2] It is trite law that a criminal charge must not be duplicitous: S v The Queen;[3] Walsh v Tattersall.[4]
[1] (1991) 57 A Crim R 151.
[2] (1937) 59 CLR 467.
[3] (1989) 168 CLR 266.
[4] (1996) 188 CLR 77.
A charge will be patently duplicitous if, on its face, it explicitly refers to more than one offence.[5] Conversely, a charge will be latently duplicitous if, on its face, it alleges only offence but the conduct of the prosecution case discloses additional offences: Walsh v Tattersall.[6]
[5] See the examples provided by Peek J in R v Staker (2011) 110 SASR 274 at [13] and also collected in R v Kerin (2013) 116 SASR 316 at [289].
[6] (1996) 188 CLR 77.
In this case, the appellant complains of a latent duplicity, that is, that the prosecution opening and the evidence presented at trial disclosed two separate and distinct acts, each capable of forming the basis of a charge. He contends that the latent duplicity and apparent confusion as to the factual basis of the charge has caused him prejudice. This complaint is misconceived, and can be dealt with swiftly.
A brief examination of the prosecution case and evidence reveals that no such duplicity exists. Only one application of force was ever alleged. Simply because two witnesses proffer two different descriptions of the same actus reus it does not follow that an additional offence is alleged. The witnesses in this case were describing the same single event. While the witnesses’ accounts differed as to certain particulars (critically, whether a glass or a punch was thrown and the distance between the appellant and complainant at that time), they were consistent in describing a single application of force. How that force was applied was a matter for the Court to decide upon hearing the evidence. The information is not duplicitous.
As is made plain from the discussion above, and contrary to the submission of the appellant, in my view the prosecution opening (and evidence) alleged only one actus reus. That application of force can be described simply as the movement of the appellant’s arm towards the victim. Whether that movement is characterised as a punch or a throw is, when determining whether the appellant has suffered prejudice, of little moment.
It follows that the appellant’s argument as to the purported ‘election’ made by the prosecutor is also misconceived because there was, in fact, no election to be made.
In any event, at the time that the prosecutor is said to have ‘elected’ to pursue the aggravated offence, and indeed at all relevant times, the appellant was aware of the conflicting nature of the evidence to be presented by the prosecution. It is difficult to conceive how the appellant’s case and his counsel’s cross-examination of the witnesses would have differed to meet a case of an assault by way of a punch thrown as opposed to an assault by way of a glass thrown. In all of the circumstances, I am not satisfied that the appellant has suffered any prejudice as a result of the purported ‘election’, if such an election was in fact made, by the prosecutor to run his case on the basis that a glass, as opposed to a punch, was thrown by the appellant.
Ultra Vires
But for the concession made by the respondent at paragraphs 9 and 10 of his Outline of Argument, the preceding discussion would have been sufficient to dispose of this appeal. Indeed, the appellant has by his Notice of Appeal and Outline of Argument made no complaint as to the mechanism by which the Magistrate returned a verdict of guilty to the basic offence.
Nevertheless, it is apparent that the Magistrate was not empowered to utilise s 25 of the CLCA to return an ‘alternative verdict’ to a lesser offence, namely, the basic offence. The offence for which the appellant was charged is contained in Part 3 Division 7 of the CLCA. Section 25 is contained in Part 3 Division 7A of the CLCA, and relevantly provides:
25—Alternative verdicts
If —
(a)a jury is not satisfied beyond reasonable doubt that a charge of an offence against this Division has been established; but
…
the jury may return a verdict that the defendant is not guilty of the offence charged but is guilty of the lesser offence.
[emphasis added]
The Division referred to in s 25 is Division 7A and, accordingly, it had no application to the case before the Magistrate and he had no power to deliver an ‘alternative verdict’ in the manner that he did.
It is therefore necessary to determine whether the Magistrate had an alternative mechanism available to him, either by common law or statute, to return a verdict in respect of the basic offence in circumstances where the offence alleged by the prosecution was aggravated.
The nature of basic and aggravated offences
Central to the determination of this issue is the question whether basic and aggravated offences are separate and distinct. In other words, when a higher maximum punishment is prescribed contingently on proof of an element (the aggravating feature) additional to the basic elements of an offence, which when alone proved is punishable by a lesser maximum penalty, is a separate and distinct offence created?
In three cases the Court of Criminal Appeal has considered this issue in the context of other sections of the CLCA. In R v Tilley[7] the issue arose in the context of s 19(1) dealing with the offence of unlawful threats, in R v Sumner[8] the issue arose in the context of s 23(1) dealing with the offence of causing serious harm with intent, in F, BV v Magistrates Court of South Australia & Anor[9] the issue arose in the context of s 63A dealing with the offence of possession of child pornography.
[7] (2009) 105 SASR 306.
[8] (2013) 117 SASR 271.
[9] (2013) 115 SASR 232.
In Tilley the defendant had been charged with an offence of aggravated threatening life contrary to s 19(1) of the CLCA. The issue was discussed in the context of considering whether the trial Judge had erred in failing to leave to the jury the basic offence under s 19(1) as opposed to the aggravated offence in s 19(1). It appears to have been accepted without argument in that case that s 19 of the CLCA creates two offences. The real issue was whether the basic offence of threatening life should have been left to the jury. The Court ultimately held that the alternative basic offence could have and should have been left to the jury given the state of the evidence.
In Sumner both the appellant and the respondent in the Court of Criminal Appeal submitted that s 23(1) on its proper construction creates only a single offence and not two separate offences.
The majority (Gray and Sulan JJ, Blue J dissenting) held that s 23(1) of the CLCA creates two offences.
The majority did not consider that Kingswell v The Queen[10] had any application in the interpretation of s 23(1) of the CLCA because the plain wording of the section in the context of other provisions of the CLCA evinced a clear and explicit intention to create two offences, namely the basic offence under s 23(1)(a) of causing serious harm to another with intent to cause serious harm and the aggravated offence contrary to s 23(1)(b) of aggravated causing serious harm intending to cause serious harm.
[10] (1985) 159 CLR 264.
In Kingswell, Gibbs CJ, Mason, Wilson and Dawson JJ held that s 233B(1)(cb) of the Customs Act 1901 (Cth), which made it an offence for a person to conspire with another to import narcotics, created only one offence and that s 235 of the Customs Act 1901 (Cth) which provided a range of maximum penalties, the applicability of which depended on the presence of certain nominated aggravating circumstances, was relevant only to the penalties for the applicable offence in s 233B(1)(cb). In Kingswell the Court stated:[11]
He then considered the statutory provisions in question and held that the Act of 1967 created a number of specific offences and in that context went on to make the statement upon which particular reliance is placed by the counsel for the applicant in the present case. [Lord Diplock] said:
“My Lords, where it is provided by a statute that an accused person's liability to have inflicted upon him a maximum punishment which, if the prosecution are successful in establishing the existence in his case of a particular factual ingredient, is greater than the maximum punishment that could be inflicted on him if the existence of that particular factual ingredient were not established, it seems to me to be plain beyond argument that Parliament has thereby created two distinct offences, whether the statute by which they are created does so by using language which treats them as being different species of a single genus of offence, or by using language which treats them as separate offences unrelated to one another.”
This passage cannot have been intended to state an absolute rule of law, but rather a rule of construction or an indication of the way in which the courts will approach a question of this kind. The word “offence” has no fixed technical meaning in the law and Lord Diplock was probably using it in the broad sense of any conduct forbidden by law on pain of punishment. As his judgment recognizes, in the passage already cited, it is the legal definition of the offence which indicates which are its factual ingredients. Putting aside, for the moment, s. 80 of the Constitution, there is no fundamental law that declares what the definition of an offence shall contain or that requires the Parliament to include in the definition of an offence any circumstance whose existence renders the offender liable to a maximum punishment greater than that which might have been imposed if the circumstance did not exist. The existence of a particular circumstance may increase the range of punishment available, but yet not alter the nature of the offence, if that is the will of the Parliament. The rule of construction which Lord Diplock has enunciated is a salutary one, but must yield to an expression of a contrary intention. A contrary intention does appear in the provisions of the Customs Act with which we are concerned. The elements of the offence are defined in s. 233B(1)(cb) and the additional matters stated in s. 235(2) and (3) are relevant to the maximum sentence that may be imposed but are not ingredients of an offence.
[footnotes omitted]
[11] Kingswell v The Queen (1985) 159 CLR 264 at 275-276.

The majority in Sumner considered that the rule of construction enunciated by Lord Diplock in R v Courtie[12] had not been displaced by any expression of a contrary intention in s 19(1).
[12] [1984] AC 463.
The reasoning in the majority judgment appears to have been influenced by the structure of s 5AA of the CLCA, in particular the presence of s 5AA(6) (incorrectly described in the majority judgment as s 23(6)). Section 5AA(6) appears at the end of s 5AA and states as follows:
(6)This section does not prevent a court from taking into account, in the usual way, the circumstances of and surrounding the commission of an offence for the purpose of determining sentence.
Examples—
1A person is charged with a basic offence and the court finds that the offence was committed in circumstances that would have justified a charge of the offence in its aggravated form. In this case, the court may, in sentencing, take into account the circumstances of aggravation for the purpose of determining penalty but must (of course) fix a penalty within the limits appropriate to the basic offence.
2A person is charged with an aggravated offence and the court finds a number (but not all) of the circumstances alleged in the instrument of charge to aggravate the offence have been established. In this case, the court may, in sentencing, take into account the established circumstances of and surrounding the aggravated offence (whether alleged in the instrument of charge or not) but must not (of course) take account of circumstances alleged in the instrument of charge that were not established.
Gray and Sulan JJ considered that the reference in s 5AA(6) to “a person charged with a basic offence” in example one and “a person charged with an aggravated offence” in example two provides further support for the conclusion that two distinct offences are created by enacting basic and aggravated offences in s 23(1).
Gray and Sulan JJ were also concerned with the complications which might arise in the taking of verdicts if s 23(1) were to be construed as creating one offence only. They said:[13]
If the defendants' contentions were to be accepted, complications would arise. If there is only one offence, being the basic offence of causing serious harm with intent to cause serious harm, and the circumstances of aggravation are matters that only go to the question of penalty, it is possible that the question of aggravation is a question for the judge when determining sentence. If it is not, as was submitted, then a judge is required to take a special verdict. On the other hand, if aggravated causing serious harm with intent to cause serious harm is a separate offence, the procedure in taking a verdict is straightforward. The court would take a verdict in respect of the aggravated causing serious harm with intent to cause serious harm. If the jury were to find the defendant not guilty of that offence, then the alternative of causing serious bodily harm with intent to cause serious bodily harm would be open. Alternatively, if the basic offence was the only offence charged and, as it transpired, there were circumstances of aggravation, the judge could have regard to those circumstances, pursuant to s 5AA(6), but could not impose a sentence higher than the maximum sentence for the basic offence.
[13] R v Sumner; R v Fitzgerald (2013) 117 SASR 271 at [37].
In a dissenting judgment Blue J reached the opposite conclusion. Blue J noted that the Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA) which included s 5AA effectively introduced a general regime of maximum penalties at two different levels depending on whether the offence was characterised as a basic offence or an aggravated offence. Aggravating circumstances generic to all offences or at least certain classes of offences within the Act are defined in s 5 of the Amending Act. Blue J considered that the evident purpose of the amendments in s 5AA was to generalise and standardise circumstances of aggravation and to increase the maximum penalties applicable to offences committed in any of the circumstances defined in s 5AA. In light of this conclusion Blue J concluded that there is no reason to attribute to the legislature an intention to create two separate offences if the previous regime created only a single offence under a given provision.
In reaching that conclusion Blue J relied on Kingswell as well as a previous decision of this Court R v Hietanen.[14]In Hietanen the Court held that the offence of causing bodily harm by dangerous driving in s 19A of the CLCA as it then was, created only one offence notwithstanding the fact that higher maximum penalties were designated if there were present circumstances of aggravation.
[14] (1989) 51 SASR 510.
Like Gray and Sulan JJ, Blue J also reasoned to that conclusion by reference to the wording of s 23(1) in conjunction with other sections in the CLCA including in particular s 5AA.
He considered that if each of the different circumstances of aggravation prescribed in s 5AA are treated as elements of the offence itself it might give rise to unintended and unforeseen consequences and difficulties.
Section 5AA(1) contains 13 separate subparagraphs which identify different circumstances of aggravation which apply generally to all offences in the CLCA to the extent that they may be applicable.[15] Blue J considered it unlikely that the Parliament intended to create an offence which might contain in addition to the basic elements fixed in s 23(1) any one of a number of 13 disparate “elements” to be found in s 5AA(1).
[15] Section 5AA(1) contains 15 paragraphs, but two are confined to specific Parts of the Act.
He considered if that was so, then s 5AA(3) would be otiose because the circumstances of aggravation would ex hypothesis be elements of the offence itself. Section 5AA(3) and s 5AA(4) of the CLCA state:
5AA—Aggravated offences
…
(3)If a person is charged with an aggravated offence, the circumstances alleged to aggravate the offence must be stated in the instrument of charge.
(4)If a jury finds a person guilty of an aggravated offence, and 2 or more aggravating factors are alleged in the instrument of charge, the jury must state which of the aggravating factors it finds to have been established (but a failure to comply with this subsection does not affect the validity of the jury's verdict).
…
It can be seen that s 5AA(4), which requires the jury to state which aggravating factor or factors it finds to have been established, deals specifically with one of the complications adverted to by Gray and Sulan JJ in Sumner. No reference to s 5AA(4) was made in the majority judgment.
In F, BV the issue arose in the context of s 63A, however as Kourakis CJ noted, the proper construction of s 63A and whether it creates one or more offences was not fully argued and only arose incidentally.
In F, BV Gray J concluded that by providing a maximum penalty for a first offence and for subsequent offences that are aggravated offences, s 63A(1) addresses additional offences beyond the elements to be found in s 63A(1)(a) and s 63A(1)(b). Gray J found that the definitions and the introductory words in s 5(1) and s 5AA(1) of the CLCA make it plain that the aggravated offence is cumulative upon the basic offence in the sense that the aggravated offence is constituted of the basic offence “in its aggravated form”. As the elements of the aggravated offence incorporate the elements of the basic offence in Gray J’s opinion the basic offence is an alternative offence and in appropriate circumstances ought to be left to the jury even if not specifically pleaded in the information.
In reaching that conclusion I consider that Gray J was implicitly recognising that the common law still remains a relevant consideration as to whether and which alternative verdicts are available to a jury or a trier of fact on a charge under s 63A of the CLCA. For it is clear that at common law a basic offence, the elements of which are encompassed by the greater offence, was available as an appropriate alternative verdict to a jury assuming such a verdict was reasonably open on the evidence.
I agree with that proposition insofar as it may apply to a trial by jury or Judge alone, however s 57 of the Juries Act 1927 (SA), which permits a jury to return in certain circumstances a verdict of guilty to an alternative offence, does not apply to decisions of Magistrates and absent a statutory power, in my view, a Magistrate has no power to return an alternative verdict which is not specifically pleaded on the complaint or information without amending that information or complaint to conform with the offence found.
Kourakis CJ in F, BV expressed a tentative conclusion that s 63A creates two distinct offences. It may be, as Kourakis CJ himself noted, that there is ultimately little consequence in many cases whether the offence in s 63A creates one or two distinct offences because the Court has the power to bring in an alternative verdict not charged in appropriate circumstances where that alternative verdict is reasonably open. However that conclusion does not apply to a Magistrate sitting in a court of summary jurisdiction.
In a separate judgment Vanstone J reached the conclusion that s 63A creates only one offence. The reasoning of Vanstone J is substantially in accordance with the reasons of Blue J in Sumner.
It appears from the foregoing that there is some divergence of judicial opinion in this State as to the effect of the Statutes Amendment and Repeal (Aggravated Offences) Act 2005 (SA), in particular, whether the introduction of the general regime of maximum penalties at two different levels, depending on whether the offence is characterised as a basic offence or an aggravated offence, does evince a legislative intention to create two offences in respect of those offences to which s 5AA may apply.
In my view the authorities to which I have referred demonstrate that there are cogent arguments both for and against construing the relevant sections under consideration in each case as two distinct offences. However, in the end, although I have been greatly assisted by the reasoning in these authorities, I do not consider that I am bound by any of them. That is because none of them deal with s 20(4). There has, as far as I am aware, been no other case in which the issue of the proper construction of s 20(4) of the CLCA has been determined.
Unlike the cases to which I have referred, the determination of the issue in the context of this matter does have some practical consequences of potential significance.
In the event that s 20(4) of the CLCA does evince a legislative intention to create two distinct offences, ie an assault that causes harm contrary to s 20(4)(a) (the basic offence) and an assault contrary to s 20(4)(b) or s 20(4)(c) (an aggravated offence), then the Magistrate did not have any power to return an alternate verdict on the basic offence unless it was charged on the information.
As I stated earlier the section of the CLCA relied on by the Magistrate to return an alternative verdict did not apply to a Division 7 offence with which he was dealing. Accordingly, he had no power to deliver an alternative verdict by relying on that statutory power.
While the provisions of the Juries Act 1927 (SA) make it plain that a jury, and a Judge sitting alone, have the power to return an alternative verdict where it is reasonably open on the evidence, no such corresponding power is given to a Magistrate. That this is so is clear from the fact that the Magistrates Court Rules 1992 have not picked up the relevant provisions in the CLCA as empowered by virtue of s 114 of the Summary Procedure Act 1921 (SA). Section 114 of the Summary Procedure Act 1921 (SA) states as follows:
Division 5—Cases where Court itself deals with indictable offences
114—Procedural provisions of Criminal Law Consolidation Act
The rules may provide that specified provisions of the Criminal Law Consolidation Act 1935 apply with necessary adaptations and modifications to the trial or sentencing by the Court of a person charged with an indictable offence.
Pursuant to this section, Rule 24 of the Magistrates Court Rules 1992 provides only that Rules 6 and 10 of Schedule 3 to the CLCA apply to the trial or sentencing of a person charged with a minor indictable offence. Neither of the incorporated rules provide a power to return alternative verdicts.
Section 114 of the Summary Procedure Act 1921 (SA) was preceded by s 130a of the Justices Act 1921 (SA) which states as follows:
Application of Criminal Law Consolidation Act to minor offence
130a. The following provisions of the Criminal Law Consolidation Act, 1935, namely, section 181, subsections (2) and (3) of section 195, subsection (4) of section 196, subsection (2) of section 198, so much of rule 6 of schedule 3 as relates to naming the owner of property, and rule 10 of schedule 3 shall apply on the trial under this Division of any offence to which they relate in the same manner as far as possible as they apply on the trial of similar offences in the Supreme Court.
In effect, the now repealed s 130a provided the machinery for the Magistrates Court to incorporate the powers in the CLCA to return alternative verdicts to offences of larceny by a servant and embezzlement (s 181), false pretences (s 195) and stealing and receiving (s 195). I consider that the submission made by counsel for the respondent that the failure to utilise the powers in s 114 of the Summary Procedure Act 1921 (SA) in the current Magistrates Court Rules 1992 in the same way as was done under the old Justices Act 1921 (SA) leaves a Magistrate without power to return an alternative verdict in any of those matters where they are dealing with a statutory offence in the CLCA unless that alternative offence has been charged in the alternative.
For this reason the issue as to whether s 20(4) creates one or two offences is determinative of the issue whether the Magistrate had power to return the verdict for the basic offence. If two distinct offences are created then absent an amendment to the information the Magistrate did not have any power to return a verdict for an alternative offence not charged. If only one offence is created in s 20(4) then this complication disappears.
In the end the answer to that question must depend on the construction of s 20 in light of the other provisions in the CLCA. It can be seen that s 20 appears within Division 7 of the CLCA as a standalone provision which does not contain any provision for alternative verdicts.
Section 20(3) in essence enacts the old common law offence of assault (formerly contained in s 39 of the CLCA) and s 20(4) in essence enacts the offence of assault occasioning actual bodily harm (formerly contained in s 40 of the CLCA). Historically there was never any doubt in the former Act that each of those sections created only one offence.
The structure of both s 23(1) and s 20(4) are very similar. For these reasons in my view the reasoning of Blue J in Sumner about s 23(1) applies with even more force to the construction of s 20(4).
I also consider it to be significant that Division 7 contains no provision for any alternative verdicts. One obvious reason for that may be because it was not considered necessary in light of the fact that the legislative intention was to create only one offence in s 20(3) and one offence in s 20(4).
For all of these reasons I take the view that s 20(4) creates only the one offence of assault causing harm which can be committed with or without aggravating circumstances.
If that is correct then the Magistrate had the power to return a verdict in respect of a basic assault because that is the offence contrary to s 20(4) which was charged. As the aggravating circumstance alleged on the information was not proved, that left the basic offence proved.
Power to amend
Out of an abundance of caution, given the uncertainty surrounding the relationship between basic and aggravated offences, I determine, in any event and for the reasons that follow that it was within the power of the Magistrate to amend the information prior to delivering his verdict to reflect the facts as he found them to be.
Pursuant to s 181 of the Summary Procedure Act 1921 (SA), the Court has the express power to amend an information:
181—Charges
(1) An information or complaint is not invalid because of a defect of substance or of form.
(2) The Court may—
(a)amend an information or complaint to cure a defect of substance or form (but if the defendant has been substantially prejudiced by the defect, no amendment may be made); or
(b)dismiss an information or complaint if the defect cannot appropriately be cured by amendment.
The Court’s power to amend is curtailed only by the requirement that no substantial prejudice be visited upon the defendant as a result of the defect in the information. In this case, the defect (again assuming my interpretation of s 20(4) of the Act discussed above is incorrect) is the failure to plead the basic offence.
After reviewing the relevant authorities and legislation, Kourakis J (as he then was) determined in Wellington v Police[16] that a Magistrate could amend an information that was bad for duplicity to include a further count so as “to accord with the reasons of a magistrate”.[17] In the result, his Honour went on to amend the information to remedy a latent duplicity. This is illustrative of the principle that an amendment to an information may be made at any stage of the proceedings, even after they have been concluded at first instance.[18]
[16] (2009) 105 SASR 215.
[17] Wellington v Police (2009) 105 SASR 215 at [44].
[18] See also Schultz v Pettitt (1980) 25 SASR 427 per Cox J at 432.
Accordingly, the only bar to any amendment to the information is whether the appellant has been substantially prejudiced by the respondent’s failure to plead the basic offence. For the reasons set out at paragraph [21] above, I consider that there is no such prejudice.
If necessary therefore, I would allow the appeal but only for the purpose of permitting the respondent to amend the particulars of the charge by deleting the following words:
This is an aggravated offence.
It is further alleged that the circumstances of aggravation are that the offender used an offensive weapon to commit, or when committing, the offence.
For these reasons the appeal is dismissed.