Graham v Magistrates Court of South Australia

[2018] SASC 28

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application for Judicial Review)

GRAHAM v MAGISTRATES COURT OF SOUTH AUSTRALIA & ANOR

[2018] SASC 28

Judgment of The Honourable Justice Stanley

15 March 2018

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY

CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT - GENERALLY

Application for judicial review of a decision of a magistrate which determined the Magistrates Court had jurisdiction to hear and determine a purported complaint and to amend that complaint.

On 24 February 2017, the second defendant issued a complaint and summons alleging that the plaintiff, on 3 April 2015, assaulted the second defendant “and caused him harm” contrary to s 20(3)(a) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The complaint averred that this is a summary offence. Subsequently, on 12 April 2017, the plaintiff brought an application to dismiss the complaint pursuant to s 181(2)(b) of the Summary Procedures Act 1921 (SA) (SPA). On 1 June 2017, the second defendant brought an application to amend the complaint to delete the words “and caused him harm”, pursuant to s 181(2)(a) of the SPA. On 26 June 2017, the magistrate dismissed the plaintiff’s application to dismiss the complaint and granted the second defendant’s application to amend the complaint.

At issue is whether the complaint, as laid, charged the minor indictable offence of assault causing harm, contrary to s 20(4)(a) of the CLCA. Further, whether in any event any defect is capable of amendment pursuant to s 181 of the SPA.

Held: Application granted.

1. Considering the impugned document ex facie by reference to the words of the charge in their context, it is far from clear that the charge was laid as a basic assault pursuant to the appropriate section pertaining to a common assault. To the contrary, the document is ambiguous. The words of the charge alleging that on a specified date at a specified place the plaintiff assaulted the second defendant and caused him harm plainly allege the offence of assault cause harm contrary to s 20(4)(a) of the CLCA. So much is apparent from a consideration of the terms of those provisions.

2. The conclusion that the offence charged is an assault causing harm contrary to s 20(4)(a) has the consequence that the offence charged is a minor indictable offence, which can only be charged on information. In this case, the offence has been erroneously charged on complaint instead of an information. That is not curable by amendment. The complaint is invalid and a nullity.

3.  In any event, such amendment was statute barred.  It is a fundamental principle of law that a court will not permit amendment of a proceeding where to do so would remove an immunity given to an accused person by the expiry of a relevant limitation period.

Criminal Law Consolidation Act 1935 (SA) s 20(3), s 20(4); Summary Procedure Act 1921 (SA) s 22A, s 49, s 57, s 103, s 107, s 181, referred to.
DPP Reference (No 2 of 2001) (2001) 4 VR 55; Ciorra v Cole (2004) 150 A Crim R 189; DPP v Kypri (2011) 33 VR 157; S Kidman & Co Ltd v Lowndes (2016) 314 FLR 358; Russell-Taylor v Jackson-Nelson [2007] SASC 15; Brown v RSPCA (SA Inc [2017] SASC 95; Tregilgas v Howie [1926] SASR 122; Schultz v Pettitt (1980) 25 sasr 427, considered.

GRAHAM v MAGISTRATES COURT OF SOUTH AUSTRALIA & ANOR
[2018] SASC 28

Civil:  Application for Judicial Review

STANLEY J.

Introduction

1. This is an application for judicial review.  The plaintiff seeks review of two decisions of a magistrate that the Magistrates Court had jurisdiction to hear and determine a purported complaint and to amend that complaint.  The plaintiff seeks:

   1.     an order in the nature of certiorari quashing the order of the magistrate purporting to amend the complaint brought by the second defendant by deleting the words “and caused him harm”; 

   2.     a declaration that the complaint is bad in law and invalid;

   3.     a declaration that the Magistrates Court does not have jurisdiction to hear and determine the complaint;

   4.     an order in the nature of prohibition preventing the Magistrates Court from hearing and determining the complaint;  and

   5.     costs.

   Background

2. On 24 February 2017, the second defendant issued a complaint and summons in the Magistrates Court alleging that the plaintiff, on 3 April 2015, at Brompton, had assaulted the second defendant and caused him harm, contrary to s 20(3)(a) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The complaint averred that this is a summary offence.

3. Subsequently, on 12 April 2017, the plaintiff brought an application to dismiss the complaint pursuant to s 181(2)(b) of the Summary Procedure Act 1921 (SA) (the SPA).[1]

   [1]    Section 181(2)(a) was amended by s 47 of the Summary Procedure (Abolition of Complaints) Amendment Act 2016 (SA), which commenced operation on 3 October 2017. The amendment deleted the reference to “or complaint”. The relevant provision for the purposes of this application is the pre‑amendment provision.

4. In response, on 1 June 2017 the second defendant brought an application to amend the complaint to delete the words “and caused him harm”.  The application was brought pursuant to s 181(2)(a) of the SPA.

5. On 26 June 2017, a magistrate dismissed the plaintiff’s application to dismiss the complaint and granted the second defendant’s application to amend the complaint.

6. It is these orders which are the subject of the application for judicial review. 

   Proceedings before the magistrate

7. Before the magistrate the plaintiff contended that the complaint, as laid, charged him with the minor indictable offence of assault causing harm, contrary to s 20(4)(a) of the CLCA. This was a nullity as it alleged a minor indictable offence which, as a matter of law, it could not do. A charge pursuant to s 20(4)(a) is a minor indictable offence which can only be laid on information. On the other hand, the offence of common assault, contrary to s 20(3)(a) of the CLCA, is a summary offence. Before the magistrate, the plaintiff submitted that the Magistrates Court lacked jurisdiction to hear the charge because what was a minor indictable offence had been charged by way of complaint rather than information. As a result, the plaintiff contended that the complaint was a nullity and, accordingly, it was not capable of being amended to cure the defect.

8. The second defendant argued that the charge which he brought on complaint was the summary offence of common assault, pursuant to s 20(3)(a) of the CLCA. The complaint was brought, as required, pursuant to s 49 and s 57 of the SPA. Further, he submitted that the complaint complied with s 22A of the SPA, as it contained a reference to the section of the CLCA creating the offence, namely, s 20(3)(a). He submitted that the Magistrates Court’s jurisdiction was properly invoked. The words “and caused him harm” were an error of form or substance which were capable of being deleted by amendment pursuant to s 181, without occasioning any substantial prejudice to the plaintiff. The second defendant contended that the words sought to be omitted were surplusage and did not cause any embarrassment or confusion.

   Reasons of the magistrate

9. The magistrate said:

   The critical issue is whether the documents [sic] as laid was laid as a summary offence or as a minor indictable offence to begin with.

   …

   The applicant submits that the jurisdiction is properly invoked.  He argues that the words “and caused him harm” is an error of form or substance in the particulars which can be amended pursuant to s 181, because to do so does not change the central core of the charge and allegation.  It is further argued that such amendment causes no prejudice and certainly no substantial prejudice to the defendant.  The complainant argues, in effect, that the core offence of assault remains and all that is removed are the words “and caused him harm” in the particulars which are surplusage and do not cause any embarrassment or confusion to the defendant.  Further, the amendment is sought to be made at an early state in the proceedings. 

   I am in agreement with the submission of the applicant [the second defendant].  It is clear from the face of the documents [sic] that the charge was laid as a basic assault pursuant to the appropriate section pertaining to a common assault and classified on the document as a “summary offence”.  The intention to lay a summary offence is manifest on the face of the document.  There is no suggestion that the document purports to charge an indictable offence.

   ...

   In the case before this court the charge of assault was always laid as a summary offence on complaint and remains so.  The amendment does not change that.  All that is sought to be amended are the particulars of an offence properly laid on complaint.

   On the issue of prejudice the defendant submits that the document as it currently stands alleges a minor indictable offence which would allow the defendant the right to elect for trial by jury, a right which would be lost if the amendment is allowed. 

   Having found against the defendant’s contention that the complaint is a nullity for the reasons mentioned it is implicit in my finding that the document in its current form does not allege a minor indictable offence.  It in fact alleges an offence on complaint and hence there exists no prejudice, substantial or otherwise.

   Submissions of the parties

10. Mr Abbott QC, counsel for the plaintiff, submits that the specific offence alleged against the plaintiff is to be identified by the words of the charge pleaded in the purported complaint, namely, “... assaulted Dean Cosenza and caused him harm”. This is an allegation of an offence contrary to s 20(4)(a) of the CLCA. It is a minor indictable offence because it carries a maximum penalty of three years imprisonment. Summary offences are only those offences where the maximum penalty is two years or less. Only summary offences can be instituted on complaint. All other offences must be instituted on information. The purported complaint is, therefore, a nullity and the resulting summons is invalid. As the offence charged is a minor indictable offence, s 103 and s 107 of the SPA apply. Those provisions do not apply to charges commenced by way of complaint, pursuant to s 49 of the SPA. Accordingly, he submits that the jurisdiction of the Magistrates Court cannot be invoked by a charge that can only be brought on information which is dressed up in the guise of a complaint.

11. Mr Abbott submits that the magistrate erred in holding that the second defendant’s intention to lay a complaint alleging a summary offence, contrary to s 20(3)(a) of the CLCA, was manifested on the face of the document. The complaint expressly alleged an assault which caused harm. The magistrate’s reliance upon the subjective intention of the second defendant is in error.

12. In the alternative, Mr Abbott submits that the complaint is bad for alleging two separate offences, namely, contraventions of s 20(3)(a) and s 20(4)(a). If a summary offence was to proceed together with an indictable offence, then such prosecution could only be commenced on information.

13. Finally, Mr Abbott submits that the magistrate erred in amending the complaint. By the time the amendment was made on 26 June 2017, any complaint of a contravention of s 20(3)(a) committed on 3 April 2015 was out of time. The amendment of the complaint to allege the offence of common assault went further than clarifying the charge and purported to allege a new offence which was out of time. This occasioned substantial prejudice to the plaintiff. This was an impermissible attempt to avoid the limitation period.

14. Mr Barnett, counsel for the second defendant, submits that the charge laid by the second defendant against the plaintiff was the summary offence of common assault, contrary to s 20(3)(a) of the CLCA. Accordingly, it was properly laid by complaint. He identified three important features of the impugned document which he submits supports the proposition that the charge laid was common assault. First, it appears to be a complaint. Second, it refers to s 20(3)(a) as is required by s 22A of the SPA. Third, it avers that the offence charged is a summary offence. It follows that the fundamental premise of the plaintiff’s grounds for judicial review is flawed, namely, that the complaint charges the minor indictable offence of assault causing harm.

15. He submits that the words “and caused him harm” are mere surplusage and there was no error in the magistrate amending the complaint to delete them, even though strictly the amendment was not necessary.  The magistrate clearly had jurisdiction to amend pursuant to s 181 of the SPA, and the only limitation on the exercise of the power is demonstration of substantial prejudice.

16. As the complaint alleged the offence of common assault, there can be no prejudice suffered by the plaintiff.  He had no entitlement to trial by jury and there is nothing in the limitation point taken by the plaintiff.  The complaint was brought within time and the amendment did no more than clarify the charge, which is clearly permissible.

17. Accordingly, he submits that there is no basis for the submission that the magistrate lacked jurisdiction to hear and determine the complaint and to hear and determine the application for amendment.  In any event, if there was any error on the part of the magistrate, it was an error within jurisdiction and judicial review does not lie.

    Criminal pleadings

18. While in recent times there has been a loosening of the rigidities of technical rules in criminal procedure and pleadings where technicality would result in injustice, there remain special features of criminal pleadings which continue to impose certain minimum requirements of precision and specificity which has long been enforced in the criminal law.[2]  In Johnson v Miller,[3] Evatt J said:[4]

    It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him.  This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character.  But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court’s inherent power and jurisdiction.  It is inherent because it is an essential and integral part of any system of administering justice according to law.  For various reasons, including the miscarriages caused by technical objections to matters of form, the formal indictment, information or complaint is allowed to become more sparing in the information it imparts.  Side by side, the jurisdiction to order particulars may call for more frequent exercise.  It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection.  These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularise the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged.  Indeed the matter arises at an even earlier stage.  The defendant cannot plead unless he knows what is the precise charge being preferred against him.  If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer. 

    [2]    S Kidman & Co Ltd v Lowndes & Anor [2016] NTCA 5 at [67], (2016) 314 FLR 358 at 375.

    [3] (1937) 59 CLR 467.

    [4] (1937) 59 CLR 467 at 497-498.

19. In S v The Queen,[5] Gaudron and McHugh JJ said, referring to the orderly administration of criminal justice:[6]

    There are a number of aspects to this consideration:  a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied;  in the event of conviction, a court must know the offence for which the defendant is to be punished;  and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict ...

    [5] (1989) 168 CLR 266.

    [6] (1989) 168 CLR 266 at 284.

20. It is a basic consideration of fairness in criminal procedure that an accused should know what case he or she has to meet.  In Walsh v Tattersall,[7] Kirby J, in the context of a consideration of the question of whether a charge was duplicitous, favoured a strict approach to resolving questions of duplicity in the pleading of criminal charges.  He did so because compliance with the rule of strictness is a correct practice to require of prosecutors.  It obliges them, at the outset of criminal proceedings, to define with accuracy each criminal offence which they intend to prosecute and to identify, in respect of each, the elements of the offence necessary to secure a conviction.  This is desirable for a fair trial of the accused.[8]

    [7] (1996) 188 CLR 77.

    [8] (1996) 188 CLR 77 at 110-111.

21. In Kirk v Industrial Court (NSW),[9] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said:[10]

    The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v Attorney-General (NSW), it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, “must at the least condescend to identifying the essential factual ingredients of the actual offence”. These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller, Dixon J considered that an information must specify “the time, place and manner of the defendant’s acts or omissions”. McTiernan J referred to the requirements of “fair information and reasonable particularity as to the nature of the offence charged”.

    [citations omitted.]

    [9] [2010] HCA 1, (2010) 239 CLR 531.

    [10] [2010] HCA 1 at [26], (2010) 239 CLR 531 at 557-558.

22. The validity of a charge is to be determined according to the contents of the summons and charge.[11]  The validity of a charge must be judged on the basis only of what appears on the face of the charge and the summons.[12]  A charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context.[13]

    [11]   DPP Reference (No 2 of 2001) [2001] VSCA 114 at [40], (2001) 4 VR 55 at [69]; Ciorra v Cole [2004] VSC 416 at [43], (2004) 150 A Crim R 189 at 200; DPP v Kypri [2011] VSCA 257 at [19], (2011) 33 VR 157 at 164.

    [12]   DPP v Kypri [2011] VSCA 257 at [28], (2011) 33 VR 157 at 166.

    [13]   DPP Reference (No 2 of 2001), [2001] VSCA 114 at [40], (2001) 4 VR 55 at [68]; DPP v Kypri [2011] VSCA 257 at [16], (2011) 33 VR 157 at 163.

1. At common law, a complaint was held invalid unless it adequately specified the legal nature of the offence with which the defendant is charged and the particular act, matter or thing alleged as the manner in which the offence was committed.[14]  The common law position, however, has been modified by statute.  At the relevant time, s 181 of the SPA provided:

   [14]   S Kidman & Co Ltd v Lowndes [2016] NTCA 5 at [55], (2016) 314 FLR 358 at 372.

   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.

2. Consideration of the meaning and nature of a charge is not confined to the principles developed by the common law.  Consideration must also be given to s 22A of the SPA. 

3. At the relevant time, s 22A of the SPA provided:[15]

   [15]   Section 22A was amended by s 8 of the Summary Procedure (Abolition of Complaints) Amendment Act 2016 (SA), which commenced operation on 3 October 2017. The amendment deleted the reference to “complaint,” in s 22A(1). The relevant provision for the purposes of this application is the pre-amendment provision.

   22A—Description of offence

   (1)Every information, complaint, summons, warrant, or other document     under this Act in which it is necessary to state the matter charged against any person shall be sufficient if it contains a statement of the         specific offence with which the accused person is charged, together     with such particulars as are necessary for giving reasonable information   as to the nature of the charge.

   (2)The statement of the offence shall describe the offence shortly in ordinary      language, avoiding as far as possible the use of technical terms, and       without necessarily stating all the essential elements of the offence, and,    if the offence charged is one created by statute, shall contain a reference     to the section of the statute creating the offence.

   (3)After the statement of the offence, necessary particulars of the offence       shall be set out in ordinary language, in which the use of technical terms        shall not be required.

4. A breach of s 22A by failing to name the statutory provision allegedly contravened or misnaming it would be the sort of breach which could be rectified by amendment and would not impeach the validity of the charge.[16]

   [16]   DPP v Kypri [2011] VSCA 257 at [16], (2011) 33 VR 157 at 163 referring to the equivalent to s 22A of the SPA in Victoria, namely, s 27 of the Magistrates Court Act 1989 (Vic).

   Consideration

5. I accept the plaintiff’s submission that the nature and meaning of the charge is not to be determined by the subjective intention of the person who makes the complaint or lays the charge.  The subjective intention of the prosecutor must be irrelevant, because that intention is inscrutable to the accused.  I did not understand the second defendant to contend otherwise.  Accordingly, the nature and meaning of the charge is to be determined objectively.

6. Considering the impugned document (to employ a neutral term) ex facie by reference to the words of the charge in their context, I am unable to accept the conclusion of the magistrate that it is “clear from the face of the documents [sic] that the charge was laid as a basic assault pursuant to the appropriate section pertaining to a common assault”.  In my view that is far from clear.  On the contrary, prima facie, the document is ambiguous. No doubt the reference to the statutory provision points to a charge of common assault contrary to s 20(3)(a), but the words of the charge alleging that on a specified date at a specified place the plaintiff assaulted the second defendant and caused him harm plainly allege the offence of assault cause harm contrary to s 20(4)(a). So much is apparent from a consideration of the terms of those provisions.

7. Section 20 provides:

   20—Assault

   (1)A person commits an assault if the person, without the consent of another person (the victim)—

   (a)     intentionally applies force (directly or indirectly) to the victim; or

   (b)     intentionally makes physical contact (directly or indirectly) with the victim, knowing that the victim might reasonably object to the contact in the circumstances (whether or not the victim was at the time aware of the contact); or

   (c)     threatens (by words or conduct) to apply force (directly or indirectly) to the victim and there are reasonable grounds for the victim to believe that—

   (i)the person who makes the threat is in a position to carry out the threat and intends to do so; or

   (ii)there is a real possibility that the person will carry out the threat; or

   (d)     does an act of which the intended purpose is to apply force (directly or indirectly) to the victim; or

   (e)     accosts or impedes another in a threatening manner.

   (2)However—

   (a)     conduct that lies within limits of what would be generally accepted in the community as normal incidents of social interaction or community life cannot amount to an assault; and

   (b)     conduct that is justified or excused by law cannot amount to an assault.

   (3)A person who commits an assault is guilty of an offence.

   Maximum penalty:

   (a)     for a basic offence—imprisonment for 2 years;

   (b)     for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 3 years;

   (c)     for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 4 years.

   (4)A person who commits an assault that causes harm to another is guilty of an offence.

   Maximum penalty:

   (a)     for a basic offence—imprisonment for 3 years;

   (b)     for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 4 years;

   (c)     for an offence aggravated by the use of, or a threat to use, an offensive weapon—imprisonment for 5 years.

8. The section plainly distinguishes between the offence where a person commits an assault and the offence where a person commits an assault that causes harm to another. The element of causing harm to another by the assault is essential to the offence created by s 20(4).

9. I accept that the bringing of the charge on the prescribed Form 2 pursuant to the Magistrates Court (Civil) Rules 1992 (SA) as a complaint and summons; the form of the complaint which avers that the charge is a summary offence; and the reference to s 20(3)(a); support the second defendant’s submission that the complaint and summons charges the plaintiff with the offence of simple assault. However, those factors relied upon by the second defendant are by no means determinative of the issue. As I say, prima facie, the terms of the document are ambiguous.  Recourse to s 22A of the SPA does not greatly assist in resolving the ambiguity. 

10. On the one hand s 22A(1) provides that every information, complaint et cetera in which it is necessary to state the matter charged against any person, shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.  In my view this focuses attention on the text of the pleaded offence on the face of the information or complaint.  This construction finds some support from the terms of s 22A(2) which provides that the statement of the offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence.  Plainly this directs attention to the text of the pleaded allegations. 

11. On the other hand, s 22A(2) further provides that if the offence charged is one created by statute, it shall contain a reference to the section of the statute creating the offence.  Equally plainly that stipulation requires, in a case such as this, that the information or complaint shall refer expressly to the statutory provision which creates the offence charged. 

12. Ultimately, the Court must resolve the ambiguity inherent in the terms of the impugned document. It is necessary for the Court to ascertain the precise charge that has been laid. That must be done according to the contents of the summons and charge. In doing so, the Court must consider the words of the charge in their context. That context includes the three features identified by the second defendant. Of those three features I consider the strongest is the reference to s 20(3)(a) of the CLCA. I place less significance on the averment that this is a summary offence and that the document by which the charge is purportedly made is a complaint and summons. I place less weight on those two factors because they are technical matters requiring an understanding of criminal procedure and practice. Against that I have to consider the words of the charge as laid.

13. In my view the magistrate erred in treating the words “and caused him harm” as mere surplusage. On the contrary, those words are critical. It is those words which unequivocally indicate that the charge being laid is the charge of an assault that causes harm to another. That is a contravention of s 20(4)(a) of the CLCA. It is the inclusion of those words that distinguishes the offence being alleged from a simple assault, contrary to s 20(3)(a), and alleges the more serious charge of assault causing harm to another, contrary to s 20(4)(a). The magistrate appears to have treated the words “and caused him harm” as particulars of the offence, when they form part of the statement of the specific offence charged.

14. The error in the magistrate’s reasons is exposed by the Court granting the application to amend.  The amendment was needed not to clarify the offence charged but to charge a different offence, namely, simple assault.  If the offence charged was simple assault an amendment would have been unnecessary. 

15. Accordingly, I am of the view that the offence charged against the plaintiff is assault causing harm, contrary to s 20(4)(a).

16. Obviously, this conclusion is contrary to the averment on the face of the document that the provision creating the offence is s 20(3)(a), but on this analysis that constitutes no more than a misdescription of the offence. That is a defect which is curable by amendment[17] if the jurisdiction of the Magistrates Court is validly invoked.

    [17]   S Kidman & Co Ltd v Lowndes [2016] NTCA 5 at [89], (2016) 314 FLR 358 at 379; DPP v Kypri [2011] VSCA 257 at [16] and [35], (2011) 33 VR 157 at 163 and 169.

17. The conclusion that the offence charged against the plaintiff is an assault causing harm to another, contrary to s 20(4)(a), has the consequence that the offence charged is a minor indictable offence. That is an offence that can only be charged on information.[18]  The trial of a summary offence charged on complaint is a process entirely different from that which follows the laying of an information charging a person with the commission of an indictable offence.  A charge of a minor indictable offence carries with it an inalienable right to elect for a trial by jury.[19]  In this case, the offence has been erroneously charged on complaint instead of on information.  In my view, for reasons I now explain, that is not curable by amendment.  As a result the complaint is invalid and a nullity.

    [18]   Russell-Taylor v Jackson-Nelson & Anor [2007] SASC 15 at [11].

    [19]   Brown v RSPCA (SA) Inc [2017] SASC 95 at [34].

18. The Magistrates Court is a creature of statute.[20]  It only has that jurisdiction which is conferred on it by statute.  The Magistrates Court has a criminal jurisdiction.[21] Section 9 of the Magistrates Court Act 1991 (SA) provides that, subject to the Summary Procedure Act 1921 (SA), the Magistrates Court has jurisdiction, inter alia, to hear and determine a charge of a minor indictable offence and to hear and determine a charge of a summary offence.  At the relevant time the criminal jurisdiction of the Magistrates Court could only be invoked by a complaint and summons alleging a summary offence,[22] or an information alleging any other offence which was not a summary offence.[23]  Before the commencement of operation of the Summary Procedure (Abolition of Complaints) Amendment 2016 (SA), where a complaint was made alleging a summary offence and the prosecution elected to upgrade the offence charged to a minor indictable offence, the prosecution had to lay an information.  Where a prosecutor had laid an information alleging a minor indictable offence and elected to downgrade the offence charged to a summary offence, a complaint had to be made.  The position that existed before the Summary Procedure (Abolition of Complaints) Amendment Act 2016 (SA) commenced operation, reflects the position at law that it was not open to a court to amend a complaint into an information or vice versa.  The power of amendment conferred by the former s 181 of the SPA was not so wide as to empower the court to convert one originating process into a different originating process.[24]  The jurisdiction of the court was invoked by one or other of those originating processes.  While the former s 181 conferred power to amend a complaint or an information to cure a defect of substance of form, that power was not unlimited.  First, it was limited by the terms of s 181(2) which precluded an amendment if the amendment curing the defect would substantially prejudice the defendant or the defect could not appropriately be cured by amendment.  Second, the power to amend was conditioned on the existence of a properly instituted information or complaint.  In my view, a complaint which alleged an indictable offence or an information which alleged a summary offence, either was an information or complaint that could not be appropriately cured by amendment within the meaning of the former s 181(2)(a), or the power of amendment conferred by the former s 181 was conditioned on the existence of a valid complaint within the meaning of s 49 of the SPA (as it then was) or a valid information within the meaning of s 101 of the SPA.

    [20]   Magistrates Court Act 1991 (SA).

    [21] Section 7(1)(d), s 7(2) and s 9 of the Magistrates Court Act 1991 (SA).

    [22]   Section 49 and s 57 of the Summary Procedure Act 1921 (SA).

    [23]   Section 101 of the Summary Procedure Act 1921 (SA).

    [24]   Russell-Taylor v Jackson-Nelson & Anor [2007] SASC 15 at [11].

19. It follows that the magistrate lacked jurisdiction to amend the impugned document because the jurisdiction of the Magistrates Court had not been properly invoked, as the originating process, which on its face purported to be a complaint and summons, impermissibly sought to charge the plaintiff with a minor indictable offence. For the reasons set out above, that defect in the originating process meant the power of amendment conferred on the Court by the former s 181 could not be exercised because the Court’s jurisdiction had not been invoked. The purported exercise of the power of amendment by the magistrate involved jurisdictional error. As the Court’s jurisdiction had not been invoked, the magistrate could not amend the charge so as to allege the summary offence of simple assault contrary to s 20(3)(a), instead of the minor indictable offence of an assault causing harm to another contrary to s 20(4)(a).

20. In any event, such an amendment was statute barred.  It is a fundamental principle of law that a court will not permit amendment of a proceeding where to do so would remove an immunity given to an accused person by the expiry of a relevant limitation period.[25] 

    [25]   Tregilgas v Howie [1926] SASR 122; Murphy v Police [2011] SASC 138 at [80]-[83].

21. In Tregilgas v Howie,[26] Murray CJ said:[27]

    It is clear … that if the complaint (I will use that term only for the sake of brevity) discloses no offence, it must be dismissed, unless the justices are of opinion that it ought to be amended.  It is also clear, in my judgment, that if no offence is disclosed in the complaint until it is amended, the time from which it becomes a good complaint is the time of the making of the amendment. … All that there is to go by is the actual fact that the complaint is not a good complaint until it is amended, and that necessarily involves the consequence that its validity as a complaint dates from the amendment. 

    … And it is obvious that if the effect of an amendment would be to create a valid information or complaint for the first time after the statutory period for taking proceedings has expired, the amendment cannot be made.

    [26] [1926] SASR 122.

    [27] [1926] SASR 122 at 126.

22. In Schultz v Pettitt,[28] Cox J said:[29]

    A complaint may not be amended, under s 183 or any other power, if the result would be to convert a bad complaint into a good one, or to charge the defendant with a different offence. … Certainly, if the effect of an amendment or a variance would be to take the offence outside the relevant limitation period, that would provide a compelling reason why an amendment to the complaint should not be made or a variance disregarded.

    [28] (1980) 25 SASR 427.

    [29] (1980) 25 SASR 427 at 433.

23. In this matter the second defendant alleged that on 3 April 2015 the plaintiff assaulted him causing harm. If the second defendant wanted to charge the plaintiff with the offence of simple assault, contrary to s 20(3)(a), the time within which to make a complaint in respect of this alleged offence expired on 3 April 2017. The purported amendment was not made until 26 June 2017. That was at a time after the expiry of the limitation period for making the complaint alleging a summary offence. At the time the purported amendment was made, the complaint was bad for the reasons explained above. The effect of the purported amendment was to charge a different offence which, by that time, was statute barred. Not only was that amendment contrary to s 181(2)(a) as the plaintiff had been substantially prejudiced by the defect but, for the reasons explained above, the Court lacked jurisdiction to order the amendment. But, in addition, it also lacked jurisdiction to order the amendment because once the limitation period expired, the court lacked the power to make the particular amendment it made charging the plaintiff with a new offence which, by that time, was statute barred. This was not an error within jurisdiction.

24. Jurisdictional error occurs where a court makes a decision outside the limits of its functions and powers or does something which it lacks power to do.  By contrast, incorrectly deciding something which the court is authorised to decide is an error within jurisdiction.  The former kind of error concerns departures from limits upon the exercise of power while the latter does not.[30]  In Kirk v Industrial Court (NSW),[31] the majority of the High Court cited with approval the Court’s earlier judgment in Craig v South Australia[32] in explaining the ambit of jurisdictional error by an inferior court.  In their joint reasons they said:[33]

    [30]   Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [163], (2000) 204 CLR 82 at 141.

    [31] [2010] HCA 1, (2010) 239 CLR 531.

    [32] [1995] HCA 58, (1995) 184 CLR 163 at 177-180.

    [33] [2010] HCA 1 at [72]-[73], (2010) 239 CLR 531 at 573-574.

    First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error "if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist" (emphasis added).  Secondly, the Court pointed out that jurisdictional error "is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers" (emphasis added).  (The reference to "theoretical limits" should not distract attention from the need to focus upon the limits of the body's functions and powers.  Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.)  Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples:

    (a)the absence of a jurisdictional fact;

    (b)disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and

    (c)misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.

    The Court said of this last example that "the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern" and gave as examples of such difficulties R v Dunphy; Ex parte Maynes, R v Gray; Ex parte Marsh and Public Service Association (SA) v Federated Clerks' Union.

    As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error.  The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that – examples.  They are not to be taken as marking the boundaries of the relevant field.  So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example.

    (Footnotes omitted.)

1. In this case while the Court had jurisdiction to amend a complaint, that jurisdiction did not extend to amending a bad complaint so as to allege a new offence which, by that time, was statute barred.  The magistrate exceeded his jurisdiction by seeking to convert a nullity into a good complaint.  In doing so the Court misconstrued the former s 181 of the SPA, thereby misconceiving the nature of the function which it was performing and the extent of its powers in the circumstances of the particular case. 

2. For these reasons, the plaintiff is entitled to the relief sought.

   Conclusion

3. I would make the following orders:

   1.an order in the nature of certiorari quashing the order of the magistrate purporting to amend the complaint brought by the second defendant by deleting the words “and caused him harm”; 

   2.a declaration that the complaint is bad in law and invalid;

   3.a declaration that the Magistrates Court of South Australia does not have jurisdiction to hear and determine the complaint; and

   4.an order in the nature of prohibition preventing the Magistrates Court from hearing and determining the complaint.

4. I would hear the parties as to costs.