Malahoff v White - [1991] TASSC 60

Serial No 37/1991
List "A"

COURT: SUPREME COURT OF TASMANIA

CITATION: Malahoff v White [1991] TASSC 60; A37/1991

PARTIES:  MALAHOFF
  v
  WHITE

FILE NO/S:  LCA 7/1991
DELIVERED ON:  24 May 1991
JUDGMENT OF:  Cox J

Judgment Number: A37/1991
Number of paragraphs: 17

Serial No 37/1991
List "A"
File No LCA 7/1991

MALAHOFF v WHITE

REASONS FOR JUDGMENT COX J

24 May 1991

This is an appeal against the decision of the learned Magistrate prior to the hearing of any evidence to amend a complaint so as to charge an offence against a different statute to that in the complaint as drawn.

The original complaint was made on 11 January 1990 and charged the appellant with driving while disqualified in breach of s37(1) of the Traffic Act 1925. The particulars given were that he had driven a motor vehicle on 30 October 1989 on Goderich Street, a public street at Launceston, while he was disqualified from holding or obtaining a driver's licence under the Traffic Act 1925.

On 18 March 1991 in the Court of Petty Sessions at Launceston, the complaint came on for hearing. The prosecutor sought and obtained leave to amend the complaint by alleging a breach of the Road Safety (Alcohol and Drugs) Act 1972 s19A(1) in lieu of the Traffic Act and by alleging in the particulars that the disqualification had been imposed under the former Act rather than the latter. The complaint was then adjourned until June 1991.

Section 37(1) of the Traffic Act 1925 provides that no person shall drive a motor vehicle in a public street while he is disqualified under "this or any other Act" for holding or obtaining a driver's licence. Subsection (2) thereof however provides:

"This section does not apply in respect of a disqualification for holding or obtaining a licence imposed under the Road Safety (Alcohol and Drugs) Act 1970 ...".

The latter Act by s19A(1) provides:
"A person who, except in so far as he is authorized to do so by a licence issued pursuant to an order made under s36 of the Traffic Act 1925, drives a motor vehicle while he is disqualified under this Act from holding or obtaining a licence is guilty of an offence."

Thus if the evidence tendered on the hearing were to establish that the defendant drove a motor vehicle on a public street while he was disqualified under the Road Safety (Alcohol and Drugs) Act 1970 he could not be convicted of the offence originally charged.

Section 31 of the Justices Act 1959 (the Act) provides:

"31–(1) An objection shall not be taken or allowed to a complaint in respect of —
(a)     an alleged defect therein, in substance or in form; or
(b)     a variance between it and the evidence in support thereof.
(2) Notwithstanding the provisions of subsection (1), where —
(a)     a complaint fails to disclose an offence or matter of complaint; or
(c)the defendant appears to have been prejudiced by any defect or variance referred to in that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Malahoff v White

Details

AGLC: Malahoff v White [1991] TASSC 60
Case: [1991] TASSC 60
Decision Date: 24 May 1991

CaseChat Overview and Summary

In the case of Malahoff v White, the appellant, Malahoff, appealed against the decision of the Magistrate to allow an amendment to the complaint which changed the statute under which he was charged from the Traffic Act 1925 to the Road Safety (Alcohol and Drugs) Act 1972. The original complaint had charged Malahoff with driving while disqualified under the Traffic Act, but the prosecutor sought to amend the complaint to allege that Malahoff was disqualified under the Road Safety (Alcohol and Drugs) Act instead. The Magistrate allowed this amendment and the appellant appealed against this decision.

The key legal issue in this case was whether the Magistrate had the power to amend the complaint to charge Malahoff with an offence under a different statute, and if so, whether the amendment was just and proper. The court considered the relevant statutory provisions, including section 31 of the Justices Act 1959, which sets out the circumstances in which a complaint may be amended. The court also considered relevant case law, including Canning v Taylor, Wickham v Cole, Breen v Gibson, Crafter v McKeough, Schultz v Pettitt, Tregilgas v Howie, and R v Newcastle-upon-Tyne Justices, ex parte John Bryce (Contractors) Ltd.

The court found that the Magistrate had the power to amend the complaint to charge Malahoff with an offence under a different statute, provided that the amendment did not change the essential elements of the charge. The court held that the amendment in this case did not change the essential elements of the charge, as the actus reus (the act of driving while disqualified) remained the same, even though the disqualification was imposed under a different statute. The court also held that the amendment was just and proper, as it did not prejudice the appellant and it was made in anticipation of a variance between the evidence and the original complaint.

The court dismissed the appeal and held that the Magistrate was entitled to allow the amendment and to hear and determine the amended information against the appellant. The court did not make any final orders in this case, as the appeal was dismissed.

In summary, the court held that the Magistrate had the power to amend the complaint to charge the appellant with an offence under a different statute, provided that the amendment did not change the essential elements of the charge. The court found that the amendment in this case did not change the essential elements of the charge and was just and proper. The appeal was dismissed and no final orders were made.

Orders