Ireland v Police
[2005] SASC 202
•18 May 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
IRELAND v POLICE
Judgment of The Honourable Justice Gray
18 May 2005
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - OTHER OFFENCES
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL
Appeal against sentence - appellant pleaded guilty to driving over the default speed limit in built up area - complaint incorrectly identified a different offence - complaint amended on appeal.
Consideration of section 181 and 182 of the Summary Procedure Act 1921 (SA) - discussion of power of court to amend a complaint on appeal.
Held - complaint amended - no prejudice to the appellant - appeal dismissed.
Motor Vehicles Act (Variation) Regulations 2003 (SA); Road Traffic (Road Rules - Ancillary and Miscellaneous Regulations) 1999 (SA) r 9B; Australian Road Rules r 20; Summary Procedure Act 1921 (SA) s 181, s 182, referred to.
Robey v Police (1993) 18 MVR 121; Lepadatu v Police [1999] SASC 400; Hayward v Whitbread [1966] SASR 1; O'Hair v Killian (1971) 1 SASR 1, considered.
IRELAND v POLICE
[2005] SASC 202Magistrates Appeal
GRAY J
Introduction
This is an appeal against penalty.
The appellant, Timothy Shane Ireland, was charged on complaint in the following terms:
On the 29TH day of JUNE, 2003 at ELIZABETH GROVE in the said State drove a vehicle namely a MOTOR VEHICLE on a length of road namely SAMPSON ROAD, in a built up area to which a speed limit sign did not apply, and which was not in a speed-limited area, school zone, or a shared zone, at a speed over the default speed limit of 50 kilometres per hour applying to you pursuant to Regulation 9B of the Road Traffic (Road Rules – Ancillary and Miscellaneous Provisions) Regulations 1999.
Rule 20 of the Australian Road Rules.
It is further alleged that you were driving a speed of about 90 kilometres per hour. This is a summary offence.
On 5 July 2004 a solicitor in the employ of the Legal Services Commission wrote to the prosecution as follows:
Expiation Notice No. C9381897. This involves a charge of speeding on 29th of June 2003. My client disputes the allegation that he was travelling at 90 km’s an hour. He is prepared to concede that he was travelling over the speed limit but he believes he was travelling something like 65 or 70 km’s per hour. Notes on the Expiation Notice seem to suggest that it is alleged that my client was followed and timed for 3 tenths of a kilometre on Sampson Street, Elizabeth Grove, and while Police were following and timing my client, they were at a distance of about 30 metres to his rear. My client disputes these statistics. He states that he told the Police that he believed he was travelling at between 65 and 70 km’s per hour. I note the Expiation Notice does not indicate that he said this.
If you were prepared to reduce the speed alleged, my client will plead guilty. Otherwise, he wants to go to trial. If you are determined to go to trial, could you please provide me with copies of your witness statements and any other materials you intend to rely upon, or which have any relevance to the matter.
The prosecution agreed to the appellant’s proposal. The complaint was amended to allege a speed of about 65 kilometres per hour, having regard to the appellant’s acknowledgment that he was travelling at a speed of something like 65 or 70 kilometres per hour.
The amended complaint was read to the appellant who then entered his plea of guilty. The magistrate convicted the appellant and imposed a fine of $100 with other levies and costs totalling $150.
Following the recording of the conviction, the appellant received a “Notice of Disqualification” from Transport SA concerning the suspension of his licence. That notice was in the following terms:
Take notice that a total of FOUR demerit points has been recorded against you in respect of offences against the sections/rules of the Road Traffic Act, 1961 and Australian Road Rules, listed below.
Pursuant to section 98BE of the Motor Vehicles Act, 1959, I have to inform you that you are disqualified from holding or obtaining a driver’s licence for a period of SIX calendar months.
Subsection (5) of section 91 of the Motor Vehicles Act, 1959, provides that a person must not drive a motor vehicle on a road while the person’s licence or permit is suspended, or while the person is disqualified from holding or obtaining a licence.
…
For the purposes of Section 98BE (1d) the specified date is 29/03/05
The disqualification will be effective from 30/03/05 or if you are already disqualified from holding or obtaining a licence, from the termination of that other disqualification.
NOT ENTITLED TO GOOD BEHAVIOUR OPTION. Pursuant to Section 139ba of the Motor Vehicles Act, I hereby require you to return your licence/permit in the enclosed pre-paid envelope by 06/04/05. Failure to comply with this requirement will render you liable to prosecution and a penalty of SEVEN HUNDRED AND FIFTY DOLLARS.
Transport SA treated the plea of guilty as though it had been to the unamended complaint. The letter from Transport SA was obviously in error. It is apparent that the department had not been advised of the terms of the amended complaint. According to the Motor Vehicle Act (Variation) Regulations 2003 (SA) it was appropriate, having regard to the amended complaint, to deduct three demerit points, not four. However, there was a further problem with the notice from Transport SA, which is explained below.
The Appeal
At the hearing of the appeal, counsel appearing for the police drew to the Court’s attention a deficiency in the complaint acted upon by the magistrate. The complaint misdescribed the offence as a breach of rule 20 of the Australian Road Rules, which in turn picked up rule 25, which fixes the default speed limit at 60 kilometres per hour. This was not a matter raised by the appellant.
The offence, the intended subject of the complaint, was driving in excess of the default speed of 50 kilometres per hour, which is an offence pursuant to regulation 9B of the Road Traffic (Road Rules – Ancillary and Miscellaneous) Regulations 1999 (SA). Regulation 9B creates a separate offence to rule 20 of the Australian Road Rules. Regulation 9B, as earlier noted, is referred to in the complaint. The relevant particulars are pleaded. The error was to misdescribe the offending provision.
The letter from Transport SA identifies the offence as one against rule 20 of the Australian Road Rules. For this further reason, the letter from Transport SA is in error.
On the hearing of the appeal, counsel for the respondent sought to amend the complaint and the recorded conviction to reflect that the breach alleged and committed was properly described as a breach of rule 9B of the Road Traffic (Road Rules – Ancillary and Miscellaneous) Regulations. The amendment also sought to delete the reference to unnecessary material relevant only to rule 25 of the Australian Road Rules.
Counsel drew attention to sections 181 and 182 of the Summary Procedure Act 1921 (SA), which provide:
181(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.
182(1) An order, summons, warrant or other process of the Court is not invalid by reason of any defect of substance or form.
(2) The Court may—
(a)amend an order, summons, warrant or other process of the Court in order to correct a defect of substance or form; or
(b)if the person against whom an order, summons, warrant or other process has been made or issued has been, or may be, substantially prejudiced by the defect—revoke the order, summons, warrant or other process.
It is settled that the Supreme Court has the power to make an amendment to a complaint on appeal in appropriate circumstances. In Robey v Police,[1] Cox J observed:
It is plain that the appellant has not been prejudiced, let alone substantially prejudiced (see s181), by the defect in the complaint. He was interviewed by the police about the incident. He was represented by a solicitor in the Magistrates Court. No point was taken there about the form of the charge. Everyone understood clearly that the police were alleging that the appellant deliberately reversed the Commodore into the front of the other car. Had an application been made to amend the charge it would no doubt have been granted. The point was not taken in the notice of appeal. Amendments of this sort are less common at the appeal stage but by no means rare. See, for example, Hayward v Whitbread [1966] SASR 1, where Mitchell J allowed an amendment in similar circumstances to these: cf McVitie, supra. Again, there is no evidence of any prejudice. [Counsel] for the appellant conceded that the point would not have been mentioned had I not myself raised it with counsel. I think it proper in the circumstances to amend the complaint and also the conviction by adding the word “intentionally” in each document before the word “damaged”.
[1] (1993) 18 MVR 121 at 123.
In Lepadatu v Police[2], Martin J adopted a similar approach:
Notwithstanding the terms of the complaint, at the outset of his reasons the Magistrate referred to the defendant being charged with having resisted two police officers in the execution of their duty. His Honour has clearly made a mistake as to the number of police officers to which the complaint referred. The terms of his judgment demonstrate, however, that he was under no misapprehension about the facts of the matter. The central features of the charge and the evidence were not affected by his Honour’s mistake. As described by Walters J in Hull v Nuske, the Magistrate found that the actus reus of the offence had been proved. The error was not of any significance to his Honour’s findings and no prejudice or unfairness has ensued. The appellant has had his case heard and determined as required by s69 of the Summary Procedure Act.
S181 and s182 of the Summary Procedure Act empower the Court of Summary Jurisdiction to amend complaints, orders and other processes of the Court. On appeal the Supreme Court possess all the same powers of amendment as the Court of Summary Jurisdiction (Supreme Court r96C.06 and r97.18). This power has been used on appeal to amend the terms of a conviction: see Robey v SA Police (unreported judgment of Cox J delivered 17 September 1993 and Hull v Nuske). If necessary I would exercise that power.
[2] [1999] SASC 400 at [19]-[20].
Counsel for the police submitted that the amendment in the terms proposed would not occasion prejudice. It was said that it was clear to the appellant that what was being alleged at the time of the hearing at the Magistrates Court was an offence of driving in excess of the default limit of 50 kilometres per hour. That was the allegation that was the subject of the expiation notice and the allegation identified in the complaint. This was the conduct to which the appellant’s solicitor’s letter referred. This was the particular to which the appellant had pleaded guilty. The “pith and substance” of the proceedings are not changed by the amendment.[3]
[3] O’Hair v Killian (1971) 1 SASR 1 at 10 and 15.
Before resolving the application to amend, it is helpful to discuss the appellant’s complaint about the conviction.
The appellant asserted in his Notice of Appeal that the complaint to which he pleaded was not amended. He thought he was pleading guilty to speeding in a 50 kilometres per hour zone on the understanding that the charge had been amended to allege a speed of between 60 and 65 kilometres per hour.
On the hearing of the appeal, when confronted with the terms of the letter from his solicitor previously referred to and the statement that his speed was “something like 65 or 70 km’s per hour”, the appellant acknowledged his difficulty in challenging the conviction. He faced a further difficulty in that the complaint was amended to allege a speed of about 65 kilometres per hour and he pleaded guilty to that complaint with that amended particular.
Subject only to the issue of the application to amend, there is no basis made out for allowing the appeal against conviction.
At the hearing before the magistrate the appellant was represented. On the hearing of the appeal, the appellant represented himself. At the outset the appellant sought an adjournment. He was obviously in a state of some anxiety. However, with the appellant present, the appeal proceeded and was then adjourned until later in the afternoon. The appellant was able to present his submissions without any apparent difficulty. At the conclusion of the hearing that day, the matter was adjourned for a week and the appellant was given the opportunity to submit any further material before the appeal was finalised.
The appellant could not identify any material prejudice arising from the application to amend. He acknowledged the terms of his solicitor’s letter, that he was well aware that he was being charged with speeding in a 50 kilometre per hour zone, and his plea. The pith and substance of the charge were correct. The complaint identified regulation 9B. The only defect in the complaint was to identify rule 20 rather than regulation 9B as the provision that had been offended.
It became apparent during the hearing that the appellant’s real concern related to the loss of his driver’s licence. His complaint about what had occurred only arose after he had received the letter from Transport SA advising that his licence had been suspended. As earlier observed, it was acknowledged by the Crown that that notice from Transport SA was defective. Following the hearing of this appeal against the amendment of the complaint and of the terms of the conviction, an appropriate notice can be expected to be sent to the appellant. If the appellant has some complaint about any further notice, then appropriate proceedings will need to be taken to advance any challenge that the appellant may wish to pursue.
Conclusion
In the circumstances it is appropriate to amend the complaint as sought. The appeal against conviction is dismissed. No relevant prejudice arose to the appellant.
On the hearing of the appeal, the appellant made it clear that he did not challenge the penalty imposed by the magistrate. He accepted that it was at the lowest possible end of the range for the offence. The fine was less than the expiation fee that would have been imposed even if his speed had been less than 65 kilometres per hour. The appellant’s real complaint related to the loss of his licence which in turn was related to the number of demerit points that his offending attracted. The appeal against penalty is also dismissed.
29