Police v Schwerdt - [2022] SASC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
POLICE v SCHWERDT
[2022] SASC 73
Judgment of the Honourable Justice Kimber
18 July 2022
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - EXCEEDING PRESCRIBED SPEED LIMITS - GENERALLY
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT - IMMATERIALITY OR ABSENCE OF PREJUDICE
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT - TIME FOR AMENDMENT
Appeal by Police against the refusal of a Magistrate to grant an application to amend an Information charging the respondent with Exceeding the Speed Limit contrary to Rule 20 of the Australian Road Rules and s 79B of the Road Traffic Act, 1961 and the subsequent finding of no case to answer.
Having received an expiation notice alleging he was the owner of a vehicle which had exceeded the speed limit and which set out the registration of the vehicle as SED10U (alphanumerical), the respondent elected to be prosecuted. In the Information commencing proceedings, the registration of the vehicle said to be owned by the respondent was set out as SEDIOU (alphabetical). Before the Magistrate, Police (the appellant) sought to amend the fourth and fifth characters of the registration alleged in the Information to reflect what had appeared in the expiation notice. The Magistrate refused the application to amend concluding, inter alia: the amendment would have created a ‘new charge’ or ‘new proceeding’; the amendment was ‘out of time’ and to grant the amendment would make a ‘bad’ Information ‘good’. The trial proceeded and the Magistrate found no case to answer.
Held, per Kimber J, allowing the appeal, amending the Information and remitting the matter for trial before a different Magistrate:
1.      The Information was not ‘bad’;
2.      The amendment would not have created a ‘new charge’ or ‘new proceeding’;
3.      The amendment was not ‘out of time’.
Australian Road Rules (SA) R 20; Criminal Procedure Act 1921 (SA) SS 22a, 52, 181; Road Traffic Act 1961 (SA) S 79b, 175, referred to.
Crafter v McKeough [1943] SASR 371; Schutz v Pettit (1980) 25 SASR 427; Springall v Police (2007) 98 SASR 493; Choong v Police [2011] SASC 168; Robey v Police (1993) 18 MVR 121, applied.
Graham v Magistrates Court of SA and Anor [2018] SASC 28; Police v Dodd (2004) 88 SASR 130, discussed.
Elliot v Harris (No. 2) (1976) 13 SASR 516, considered.

POLICE v SCHWERDT
[2022] SASC 73
Magistrates Appeal: Criminal
Kimber J:
Overview

This is a prosecution appeal against the refusal of a Magistrate to grant an application pursuant to s 181 of the Criminal Procedure Act, 1921 (CPA) to amend an Information charging the respondent with an offence contrary to Rule 20 of the Australian Road Rules and s 79B of the Road Traffic Act, 1961 (RTA). The amendment having been refused, the trial proceeded. The Magistrate dismissed the charge at the conclusion of…

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 Police v Schwerdt

Details

AGLC: Police v Schwerdt [2022] SASC 73
Case: [2022] SASC 73
Decision Date: 18 July 2022

CaseChat Overview and Summary

The case of Police v Schwerdt involved an appeal against a decision of the Magistrates Court of South Australia. The respondent, who was initially issued an expiation notice for exceeding the speed limit, elected to be prosecuted. The appellant filed an Information in the Magistrates Court, which contained an alleged registration number that differed from the one in the expiation notice. The respondent opposed the appellant's application to amend the Information, leading to the appeal.

The central legal issue was whether the alleged defect in the registration number in the Information rendered it invalid, thereby necessitating the quashing of the charge. This involved examining whether the defect was one of substance or form and whether the amendment could be made under the Criminal Procedure Act 1921 (SA). The court also needed to determine if the amendment would cause any prejudice to the respondent and if the timing of the amendment complied with statutory provisions.

The Supreme Court of South Australia found that the registration number discrepancy did not render the Information invalid as it did not affect the respondent's understanding of the charge. The court clarified that the validity of the Information should be judged based on what appears on its face and the context in which a reasonable defendant would understand it. Furthermore, the court held that the defect was one of form rather than substance and that the amendment would not prejudice the respondent, as the prosecution had already disclosed the correct registration number. The court also noted that the amendment was not barred by s 52 of the CPA, as the commencement of the proceedings was not out of time.

As a result, the Supreme Court allowed the appeal, amended the Information to correct the registration number, and remitted the matter to the Magistrates Court for trial before a different Magistrate. This decision ensures that the Information accurately reflects the facts of the case and allows for a fair trial.

Orders

Orders of the court

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Background

Background to the litigation

I would allow the appeal, amend the Information and remit the matter to the Magistrates Court for trial before a different Magistrate. Background The expiation notice On 12 February 2021 the respondent was given an expiation notice (the notice) for an offence of Exceeding the Speed Limit.[1] The notice alleged the respondent was the owner of a vehicle which had exceeded a 90km per hour speed limit by travelling at 110km per hour. The notice alleged the registration of the vehicle was SED10U (alphanumerical). The notice further alleged the driving had been at 5.27pm on 1 February 2021 on the North South Motorway at Dry Creek. The expiation period in the notice was 12 March 2021. [1] Contrary to Australian Road Rules r 20; Road Traffic Act 1961 (SA) s 79B. On 3 March 2021 the respondent requested a review of the notice. On 4 March 2021, the appellant was advised that review had not been successful. On 17 March 2021 the respondent elected to be prosecuted by submitting a signed notice of election and accordingly on 18 March 2021 the SAPOL Expiation Notice Branch advised the respondent the notice was deemed withdrawn.The Information On 4 August 2021 the appellant filed an Information in the Magistrates Court. The Information named the respondent as the defendant and set out the following offence details: On the 1ST day of FEBRUARY, 2021 at DRY CREEK in the said State being the owner of a vehicle REGISTRATION NUMBER SA SEDIOU where it appears from the evidence obtained through the operation of a photographic detection device that the vehicle has been involved in the commission of a prescribed offence namely being driven on a length of road namely NORTH SOUTH MOTORWAY to which a speed limit sign applied pursuant to Rule 21(1) of the Australian Road Rules over the speed limit of 90 kilometres per hour as indicated on the speed limit sign which was on the said road.Rule 20 of the Australian Road Rules and Section 79B of the Road Traffic Act, 1961.This is a summary offence.It is further alleged that the speed of the vehicle was about 110 kilometres per hour. And the complainant alleges that the said photographic detection device complied with the requirements of the Road Traffic Act. As can be seen, the registration number alleged in the offence details within the Information differed from that set out in the notice. In the Information, the fourth and fifth characters of the registration number appeared as the letters ‘I’ and ‘O’ whereas the numbers ‘1’ and ‘0’ appeared in the notice. There was no dispute on appeal that on 1 February 2021 the photographic detection device had detected a vehicle registered SED10U (alphanumerical). There was also no dispute that on 10 November 2021 the prosecution disclosed an extract from entry in the Registrar of Motor Vehicles relating the vehicle registration SED10U (alphanumerical) registered to the respondent. Magistrates Court proceedings There was a pre-trial conference (PTC) in the Magistrates Court on 10 November 2021. On that day the appellant applied to amend the Information to change the letters ‘I’ and ‘O’ to the numbers ‘1’ and ‘0’ respectively. The respondent opposed the application. The Magistrate who presided over the PTC adjourned the application to 31 March 2022 (the trial date) and made orders with respect to written submissions.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Magistrate found the amendment would make a ‘bad information good’. In so finding, the Magistrate placed reliance upon the judgments in Schutz v Pettit[18] (Schutz) and Graham v Magistrates Court of SA and Anor[19] (Graham). The Magistrate also relied upon what was an erroneous approach to applying s 52 of the CPA, including the finding that section was a ‘bar’ to the amendment. For reasons already given, the commencement of the proceedings was not ‘out of time’. It follows the Information was not ‘bad’ for any reason associated with s 52 of the CPA.[18] Schutz v Pettit (1980) 25 SASR 427.[19] Graham v Magistrates Court of SA and Anor [2018] SASC 28. Was the registration number on the Information a defect of substance or form? In considering whether the Information was otherwise ‘bad’, it is helpful to begin with Graham and then examine ss 22A and 181 of the CPA. The Magistrate made no reference in his reasons to either ss 22A or 181 of the CPA. Turning first to the decision of Graham, Stanley J relevantly held:[20]The validity of a charge is to be determined according to the contents of the summons and charge. The validity of a charge must be judged on the basis only of what appears on the face of the charge and the summons. 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.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. (Footnotes omitted) [20] Ibid [22]-[24] per Stanley J. Consideration of what appeared on the face of the Information leaves me in no doubt that the Information was valid at common law. The Information set out: the respondent was alleged to be the owner; the date of the offence; the road and suburb; the method of detection; the speed limit; the speed alleged and relevant rule within the Australian Road Rules and section within the Road Traffic Act. However, as Stanley J further observed, the common law position has been modified by statute.[21] Section 22A of the CPA provides:[22][21] Ibid.[22] Criminal Procedure Act 1921 (SA) s 22A.22A—Description of offence (1)Every information, 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.