Police v Schwerdt
[2022] SASC 73
•18 July 2022
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 73Magistrates 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 the prosecution case, finding there was no case to answer.
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.
On 31 March 2022 the matter came before another Magistrate (the Magistrate). The Magistrate refused the application to amend the Information. The appellant chose to proceed with the trial. At trial the Magistrate found there was no case to answer. Given the reasons of the Magistrate for refusing the application to amend, which then informed the approach of the Magistrate to refusing to admit evidence the respondent sought to tender, that outcome is unsurprising. At the conclusion of the prosecution case, the Magistrate held the prosecution had to prove the appellant owned a vehicle registered SEDIOU (alphabetical) as particularised in the Information. There was no evidence the respondent owned the vehicle particularised.
The Magistrate’s Reasons
Before turning to the grounds of appeal, it is helpful to set out the key aspects of the reasons of the Magistrate for refusing the application to amend:[2]
[2] Reasons for the decision of Magistrate Wickens dated 31 March 2022, [16]-[18], [22], [28]-[29].
If the amendment is allowed, it would not alter that (sic) character of the charge as it remains a photographic speeding offence.
However, the amendment would create an entirely new charge as against the owner of the vehicle, being Mr Schwerdt. The previous charge of course being as against the owner of another vehicle (presuming of course SEDIOU (all letters) is not also owned by Mr Schwerdt). This would be a charge that Mr Schwerdt has not seen before, nor had to face in court since being issued with an expiation notice. The amendment would essentially create entirely new proceedings because of the provision of s.79B. The common thread of Mr Schwerdt remaining as the defendant in both proceedings is no answer to the issue of amendment.
The time to lay such charges is now outside of the statutory period of s.52. I accept that there is no change to the essential elements of the offence. But in my view, such an amendment creates an entirely new proceeding. It is in my view a case, if the amendment is allowed, of making a bad information good. Hence I have little difficulty in accepting that the immunity created by the statute of limitation in s.52 is a bar to such an amendment being made. Such an immunity would be lost if the amendment was allowed and an entirely new proceedings were allowed to begin. Such an amendment is statute barred applying the authorities.
…
Allowing the amendment in my view creates an entirely new proceeding and the application to amend is refused because it is statute barred.
…
In any event, having accepted that the amendment would create a different offence, it follows that the Information as currently laid is not for the offence alleged in the expiation notice. The time limitation to lay the Information for an offence involving vehicle SEDIOU (All letters) would be 31 July 2021. The Information laid was not within time for the offence date alleged (being 12 February 2021) on the expiation notice for vehicle SED1OU (alpha numeric).
As stated above, on the day of trial, I refused the application to amend. I allowed the prosecution to proceed on the charge as laid as against the Defendant. On reflection, the proper course would have been to dismiss the charge because it was laid out of time.
(Footnotes omitted)
The Grounds of Appeal
The Grounds of appeal are:
1.The Learned Magistrate erred in refusing the appellant’s application under s 181 of the Criminal Procedure Act 1921 (SA) to amend the Information and consequently erred in dismissing the charge on the grounds there was no case to answer.
2.The Learned Magistrate erred in finding that the proposed amendment to the vehicle registration number would create a new charge or new proceedings.
3.The Learned Magistrate erred in finding the proposed amendment to the vehicle registration number would make a bad Information good.
4.The Learned Magistrate erred in finding that the proposed amendment to the vehicle registration number was barred by s 52 of the Criminal Procedure Act 1921 (SA).
Grounds 2 and 4: ‘creation of new charge’ and ‘statute barred’ amendment
I will deal with these grounds first as relevant to both are the Magistrate’s conclusions the amendment would create a ‘new charge’ and/or an ‘entirely new proceeding’. The matters to be addressed under these grounds are also relevant to the respondent’s submission the proposed amendment was ‘out of time’.
It is helpful to return to the chronology of some key events before considering s 52 of the CPA which establishes time limits within which proceedings must be commenced.
As already set out, the alleged offence occurred on 1 February 2021. The notice was issued on 12 February 2021 and sent by post on 15 February 2021. The expiation period was 12 March 2021. On 3 March 2021 the respondent sought a review of the notice. On 4 March 2021 the respondent was advised the review had not been successful. On 17 March 2021 the respondent elected, through his solicitor, to be prosecuted.
The time limit for the filing of the Information – whether the Information was for the offence in the notice
The Information was filed in the Magistrates Court on 4 August 2021. That date was more than six months after the date of the alleged offence, but within six months of the expiation period set out in the notice. The identification of those dates has significance given the time limits created by s 52 of the CPA. Section 52 of the CPA provides:[3]
[3] Criminal Procedure Act 1921 (SA) s 52.
(1)Subject to any provision of an Act to the contrary, if a person is to be prosecuted for a summary offence, the proceedings must be commenced within the following time limits:
(a) in the case of an expiable offence—
(i)if an expiation notice was given to the person—the proceedings must be commenced within 6 months of the expiry of the expiation period specified in the notice;
(ii)if an expiation notice was not given to the person—the proceedings must be commenced within 6 months of the date on which the offence is alleged to have been committed;
(b)in the case of an offence that is not expiable—the proceedings must be commenced within 2 years of the date on which the offence is alleged to have been committed.
(2)For the purposes of subsection (1), an expiation notice is to be taken into account despite its subsequent withdrawal except if the notice of withdrawal specifies that it is withdrawn because—
(a)the issuing authority has received a statutory declaration or other document sent to the authority by the alleged offender in accordance with a notice required by law to accompany the expiation notice or expiation reminder notice; or
(b)it has become apparent that the alleged offender did not receive the notice until after the expiation period, or has never received it, as a result of error on the part of the authority or failure of the postal system or failure in the transmission of an email,
(in which case the withdrawn expiation notice is to be disregarded).
Before the Magistrate, the respondent contended he was ‘not issued an Expiation Notice in his capacity as the owner of the vehicle specified in the Information’.[4] The respondent contended s 52(1)(a)(ii) of the CPA applied and proceedings had to be commenced within six months of the date of the alleged offence (i.e. 31 July 2021).[5] The Magistrate found the Information ‘is not for the offence alleged in the expiation notice’ and the ‘time limit’ to lay the Information was 31 July 2021.[6]
[4] Outline of Argument for the Defendant (MCPAR-21-7518).
[5] Criminal Procedure Act 1921 (SA) s 52(1)(a)(ii).
[6] Reasons for the decision of Magistrate Wickens dated 31 March 2022, [28].
On appeal, the respondent submitted the Magistrate was correct to determine the Information was ‘out of time’ and submitted that to amend the Information would have amounted to ‘jurisdictional error’. The respondent embraced the Magistrate’s approach, including his conclusion the Information was not for the offence alleged in the notice. I will deal first with this aspect of the approach of the Magistrate.
An aspect of the respondent’s submission was that s 52(1)(a)(ii) of the CPA applied and the Information was ‘bad’ or a ‘nullity’ because it sought to lay an offence which he submitted could only be laid until 31 July 2021. An aspect of this submission was there was not ‘an expiation notice’ given to the respondent, as the only notice given was for a vehicle with the registration SAE10U (alphanumerical), not for the registration SAEIOU (alphabetical) as set out in the Information.
It can be accepted that if s 52(1)(a)(ii) applied, then the latest date for the commencement of proceedings was 31 July 2021. However, in my view, s 52(1)(a)(i) applied and the proceedings commenced by the filing of the Information were within time. The Magistrate was wrong to conclude the Information ‘is not for the offence in the expiation notice’.
Construction of section 52(1)(a)(i) of the CPA
It is necessary to consider s 52 of the CPA and what appeared in the notice and Information. An essential condition for the application of s 52(1)(a)(i) of the CPA is that ‘an expiation notice’ must have been given to the person (i.e. - the respondent). There is no dispute the respondent was given an expiation notice, nor any dispute that one relevant aspect of that notice differed to what was set out in the Information. The issue is whether the notice received was ‘an expiation notice’ within s 52(1)(a)(i) of the CPA.
An issue is whether, for s 52(1)(a)(i) of the CPA to apply and the Information filed on 4 August 2021 to be ‘within time’, the expiation notice given had to correspond in every respect with what was set out in the Information. In my view, that is not what the text of s 52(1)(a)(i) of the CPA demands. In my view, what is demanded is the ‘summary offence’ to be prosecuted by the commencement of proceedings be an ‘expiable offence’ for which ‘an expiation notice was given to the person’.
This directs attention to whether the ‘summary offence’ in the proceedings and the offence in the ‘expiation notice’ are the same. In my view, they were. The Magistrate was wrong to conclude the offence in the Information was not the offence in the notice. In my view, the respondent was given ‘an expiation notice’ as required for s 52(1)(a)(i) of the CPA to apply.
The difference in the registration number did not mean there were different offences. The registration number was not an element of the offence. Consideration of the notice and the Information reveals both alleged a breach of r 20 of the Australian Road Rules and that the respondent was the owner of a vehicle which had exceeded a limit of 90 km/h by travelling at 110 km/h on the North South Motorway at Dry Creek on 1 February 2021. Putting aside the registration numbers which were not the same, but had more correspondence than differences, the only other relevant differences between the notice and the Information were the former set out the specific time of the alleged speeding and the latter alleged evidence had been obtained through the operation of a speed detection device. There was no suggestion on appeal those differences were of significance.
This is not to suggest there did not have to be sufficient correspondence between the notice and the Information such that there was no uncertainty the notice and subsequent proceedings related to the same alleged offence. However, that requirement is distinct from the notice and the Information needing to correspond in every respect.
What matters in this case is, notwithstanding the different registration numbers, the notice and Information set out the same offence. The difference between the registration numbers in the notice and the Information did not mean the respondent had not been given ‘an expiation notice’ for the summary offence to be prosecuted in the proceedings commenced by the filing of the Information.
It follows the time limit for the filing of the Information was not by 31 July 2021, it was within six months of the expiation period in the notice (i.e. – within six months of 12 March 2021). In short, as s 52(1)(a)(i) of the CPA applied and the proceedings commenced on 4 August 2021 were within six months of the expiation period specified in the notice, the Magistrate was wrong to conclude the contrary.
The amendment – a new charge?
The Magistrate found the amendment would create a ‘new charge’ or ‘new proceeding’. The Magistrate found ‘s 52 is a bar to such an amendment’ and the amendment was ‘statute barred’.[7] I turn to this issue.
[7] Reasons for decision of Magistrate Wickens dated 31 March 2022, [17]-[18].
As a starting point, it must be accepted that if the proposed amendment would have created a ‘new charge’ or ‘new proceeding’ the application should have been refused as the respondent would have been denied the immunity which s 52 of the CPA provides. If the amendment had that effect, the ‘new charge’ or ‘new proceeding’ was ‘out of time’ and to have amended the Information would have been an error. [8] As Stanley J held in Graham v Magistrates Court of SA, [9] 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. [10]
[8] Crafter v McKeough [1943] SASR 371, 375; Schutz v Pettit (1980) 25 SASR 427, 433; Springall v Police (2007) 98 SASR 493, [8].
[9] Graham v Magistrates Court of SA and Anor [2018] SASC 28.
[10] Ibid at [42] referring to Tregilgas v Howie [1926] SASR 122; citing with approval Murphy v Police [2011] SASC 138,[80]-[83]. Graham was overturned on appeal (Cosenza v Graham & Anor [2019] SASCFC 15) but not on this issue.
However, the amendment would not have created a ‘new charge’, or ‘new proceeding’. Had the amendment been granted, the ‘pith and substance’[11] of the charge would have remained the same: an alleged breach of r 20 of the Australian Road Rules, on the same day, on the same road at Dry Creek with the allegation being the respondent owned the vehicle and the particulars as to the speed, speed limit and method of detection remaining the same. The registration number was not an element of the offence. As the Magistrate correctly observed, had the amendment been allowed, there would not have been any ‘change to the essential elements of the offence’.[12] For these reasons, the amendment would not have removed any immunity given by s 52 of the CPA.
[11] Schutz v Pettit (1980) 25 SASR 427, 433; Choong v Police [2011] SASC 168, [24]-[25].
[12] Reasons for decision of Magistrate Wickens dated 31 March 2022, [18].
I turn to some other aspects of the reasons of the Magistrate.
Application of ss 79B and s 175 in respect of amendment creating a ‘new proceeding’
A reason for the Magistrate concluding the amendment would create a ‘new charge’ or ‘new proceeding’ was born of the approach of the Magistrate to s 79B of the RTA.[13] The Magistrate held the amendment ‘would essentially create new proceedings because of the provision of s.79B’. Section 79B of the RTA relevantly provides:
[13] Road Traffic Act 1961 (SA) s 79B.
(2)If a vehicle appears from evidence obtained through the operation of a photographic detection device to have been involved in the commission of a prescribed offence, the owner of the vehicle is guilty of an offence against this section unless it is proved—
(a)that although the vehicle appears to have been involved in the commission of a prescribed offence, no such offence was in fact committed; or
(b)that the owner, or, if the owner is a body corporate, an officer of the body corporate acting with the authority of the body corporate, has furnished to the Commissioner of Police a statutory declaration stating the name and address of some person other than the owner who was driving the vehicle at the time; or
(c) that—
(i)if the owner is a body corporate—the vehicle was not being driven at the time by any officer or employee of the body corporate acting in the ordinary course of the officer's or employee's duties as such; and
(ii)the owner does not know and could not by the exercise of reasonable diligence have ascertained the identity of the person who was driving the vehicle at the time; and
(iii)the owner, or, if the owner is a body corporate, an officer of the body corporate acting with the authority of the body corporate, has furnished to the Commissioner of Police a statutory declaration stating the reasons why the identity of the driver is not known to the owner and the inquiries (if any) made by the owner to identify the driver.
The approach of the Magistrate to the effect of s 79B of the RTA was erroneous. That the amendment might have enabled to the prosecution to rely upon s 79B of the RTA did not mean the amendment would create a ‘new proceeding’.
Subject to it being proved from evidence obtained through the operation of a photographic detection device that a vehicle has been involved in a prescribed offence, s 79B(2) of the RTA operates to make the owner of the relevant vehicle guilty of the prescribed offence, in the absence of proof to the contrary. It creates a presumption of responsibility for commission of the offence which can be rebutted, but does not change the elements of the offence. The onus always remains on the prosecution to prove beyond a reasonable doubt all elements of the offence, including that the respondent was the owner of the vehicle.[14] Section 79B of the RTA did not mean the amendment would create a ‘new charge’ or ‘new proceeding’.
[14] Cf Police v Dodd (2004) 88 SASR 130, [44].
Before the Magistrate, and on appeal, the respondent also sought to call into aid s 175 of the RTA in contending the proposed amendment would have created a ‘new charge’ or one in which the ‘pith and substance’ was different.[15]
[15] Schutz v Pettit (1980) 25 SASR 427, 433; Choong v Police [2011] SASC 168, [24]-[25].
Section 175(1)(i) of the RTA relevantly provides:[16]
(1) In proceedings for an offence against this Act, an allegation in a complaint that—
…
(i) a specified person was the owner, operator, person in charge or driver of a specified vehicle,
is proof of the matters so alleged in the absence of proof to the contrary.
[16] Road Traffic Act 1961 (SA) s 175(1)(i).
In my view, at least for the issues in this appeal, the approach to s 175 of the RTA is the same as to s 79B of the RTA. That the amendment would have enabled the prosecution to rely upon what was set out in the Information to prove the respondent was the owner of the vehicle does not mean the amendment would have created a ‘new charge’, or a ‘new proceeding’, nor would it have changed any element of the offence the appellant had to prove.[17]
[17] Police v Dodd (2004) 88 SASR 130, [44].
For the above reasons, the Magistrate erred in finding the offence in the Information was not the offence in the notice; that the proposed amendment would have created a ‘new charge’ or a ‘new proceeding’ and that the proposed amendment was barred by s 52 of the CPA.
Grounds 2 and 4 must be upheld.
Grounds 1 and 3
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.
The relevant details set out in the Information are set out at [5] above. For the same reasons the Information was valid at common law, there can be no valid complaint the Information failed to satisfy the requirements of s 22A of the CPA. The registration number set out in the Information was one of a number of ‘particulars’, but it cannot be said a misstatement of that single particular made the Information ‘bad’. The Magistrate was wrong to find it did.
Further, the approach of the Magistrate overlooks that an Information is not invalid because of a defect of substance or form. Section 181 of CPA provides:
181—Charges
(1) An information is not invalid because of a defect of substance or of form.
(2) A court may—
(a) amend an information 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 if the defect cannot appropriately be cured by amendment
For the purposes of the appeal, it may be accepted the registration number in the Information was a particular of importance. The registration number was the way the vehicle was identified with specificity in the Information and the respondent was charged on the basis he was the owner. An allegation in the Information the respondent owned the vehicle particularised allowed reliance on s 175 of the RTA and proof the respondent owned that vehicle allowed reliance upon s 79B of the RTA. Nonetheless, s 181 of the CPA is not confined to defects which are not ‘material’.[23] In my view, the registration number in the Information was a ‘defect’ within s 181 of the CPA.
[23] Schutz v Pettit (1980) 25 SASR 427, 433.
For the above reasons, the Information was not ‘invalid’ or ‘bad’. The Magistrate was wrong to find it was. Ground 3 must be upheld.
Discretion of the Magistrate to amend the Information
For the reasons set out above, the Magistrate erred in his approach to the exercise of the discretion to amend the Information pursuant to s 181(2) of the CPA in more than one respect. The proposed amendment would not have created a ‘new offence’ or ‘new proceedings’, it would not have removed an immunity given by the expiry of a limitation period nor have made a ‘bad information good’. These errors were central to his reasons for not granting the amendment.
Had the amendment been made, the ‘pith and substance’[24] of the charge would have remained the same. In those circumstances, a proper exercise of the discretion given by s 181(2) of the CPA called for the amendment to be granted, subject to whether the respondent ‘has been substantially prejudiced by the defect’. Given the findings the Magistrate made, no finding was made on this issue in the Court below.
[24] Schutz v Pettit (1980) 25 SASR 427, 430; Choong v Police [2011] SASC 168 [24]-[25]; Springall v Police (2007) 98 SASR 493, [8].
The respondent submitted the amendment would cause substantial prejudice. I turn to that issue.
Substantial prejudice
In Elliot v Harris (No.2) (1976) 13 SASR 516, Bray CJ considered the meaning of prejudice in the context of what was then s 182 of the Justices Act, 1921 (SA) which permitted an amendment provided the defendant had not been prejudiced. Bray CJ held at 523: [25]
...if there is a reasonable possibility that the defendant could have shaped his case otherwise if the complaint had been framed in accordance with the findings of fact ultimately made, then he would, in my view, be prejudiced if the complaint were amended after the close of the prosecution case for a conviction recorded in terms of findings of fact add variance with the allegations in the complaint.
[25] Elliot v Harris (No. 2) (1976) 13 SASR 516, 523.
As I understood the respondent’s submissions on the appeal, the substantial prejudice occasioned by the defect was the following matters: the denial of the immunity from prosecution; the ability of the prosecution to rely upon the aids to proof in s 79B and s 175 of the RTA; the inability to defend the charge by the respondent submitting he was not the owner of the car and that other points might have been run.
It is helpful to consider each of these matters in turn, acknowledging that they must be viewed in combination. They do not amount to substantial prejudice.
As for any denial of immunity from prosecution from the proposed amendment, that submission must depend upon whether the amendment would create a ‘new charge’, or a ‘new proceeding’. For reasons already given, the amendment would not have that consequence.
As for the ability of the prosecution to rely upon a presumption of responsibility, or aid to proof, it must be doubted a person suffers relevant prejudice if reliance can be placed upon a presumption, or aid, provided by statute. However, it is enough to observe this respondent would not have suffered substantial prejudice for that reason. The amendment simply sought to change the registration number to that in the notice.
As for the inability of the respondent to say he was not the owner of the car particularised, that cannot be a relevant prejudice. It can again be observed the amendment simply sought to change the registration number to that in the notice. It is to be remembered it the notice with respect to which the respondent elected to be prosecuted.
As for the respondent’s submission that ‘other points might have been run’, that is reminiscent of what Bray CJ referred to in Elliott as ‘a reasonable possibility that the defendant could have shaped his case otherwise’. As to that ‘reasonable possibility’, when pressed on the hearing of the appeal, the respondent was not able to articulate what those points might have been.
The respondent has not been substantially prejudiced by the defect. The alleged offence occurred on 1 February 2021. The respondent had considered the notice with respect to that alleged offence by no later than 3 March 2021. At that time, the notice set out the registration details of the car he was alleged to own. On 17 March 2021 the respondent elected to be prosecuted for the offence. At that time, he must have known the vehicle alleged in the offence was registered SAE10U (alphanumerical) as that was the registration number in the notice. The reason, or reasons, for his election to be prosecuted cannot be known. Nonetheless, two things are clear. First, his reason, or reasons, cannot have related in any way to the registration number which came to be set out in the Information, as that number did not appear in the notice. Second, if his election related in any way to the registration number which appeared in the notice, the proposed amendment returned the registration number to that alleged at the time of the election. For these reasons, the respondent had not been substantially prejudiced by the defect at the time the application was first made on 10 November 2021.
The respondent also had not been substantially prejudiced by the defect on 31 March 2022, the day the application was ultimately heard by the Magistrate. As set out above, no substantial prejudice had occurred as at 10 November 2021. On that day, the respondent knew there would be an application to amend the Information and it would be heard on 31 March 2022. There is no suggestion anything of significance to the issue of ‘substantial prejudice’ occurred between 10 November 2021 and 31 March 2022. Between those dates, the respondent could not know if the application to amend the Information would be successful. The respondent had to prepare for a trial on the basis the amendment might be made.
As the defect sought to be amended was one of substance and the respondent had not been substantially prejudiced, the Magistrate erred in refusing the application to amend the Information. That refusal then resulted in no case to answer being found. The approach of the Magistrate in refusing the application to amend was central to his refusal to allow certain evidence to be tendered and central to his conclusion there was no case to answer.
Ground 1 must be upheld. The finding of no case to answer should be set aside.
The amendment power on appeal
The amendment power may be exercised by this Court when hearing an appeal from a Magistrate’s decision.[26] The appellant submitted this Court should grant the application. Given the conclusions I have reached above, the amendment should be granted.
[26] Robey v Police (1993) 18 MVR 121, 123-4; Choong v Police [2011] SASC 168, [23].
Pursuant to s 181(2) of the CPA, I amend the Information received in the Registry of the Elizabeth Magistrates Court on 4 August 2021 to delete ‘SAEIOU’ and replace that with ‘SAE10U’.
Orders
I make the following orders:
1.The appeal is allowed on grounds 1-4 inclusive.
2.The orders of the Magistrate are set aside.
3.The Information received in the Registry of the Elizabeth Magistrates Court on 4 August 2021 is amended to delete ‘SAEIOU’ and replace that with ‘SAE10U’.
4.The matter is remitted to the Magistrates Court for retrial before a different Magistrate.
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