Police v Smith - [2025] SASC 183

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
POLICE v SMITH
[2025] SASC 183
Judgment of the Honourable Justice McDonald
6 November 2025
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT - IMMATERIALITY OR ABSENCE OF PREJUDICE
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT - TIME FOR AMENDMENT
This is an appeal by the Commissioner of Police (‘the appellant’) against a decision of a Magistrate to dismiss an Information dated 13 October 2023. The Information charged the respondent with one count of driving a motor vehicle with methamphetamine in his fluid or blood, contrary to s 47BA(l)(a) of the Road Traffic Act 1961 (SA).
The respondent had initially been issued with an expiation notice, and on 27 July 2023, the respondent elected to be prosecuted for the offence. At a pretrial conference on 14 August 2024, the Magistrate granted the application of the respondent to dismiss the Information.
The grounds of appeal are:
1.The learned Magistrate erred in finding that the particulars were incorrect on the basis that the reference to the section of the statute creating the offence contained an error in the subsection.
2.The learned Magistrate erred in finding that to amend the subsection of the section of the statute creating the offence outside the limitation period was prejudicial to the respondent.
3.The learned Magistrate erred in not exercising her discretion under s 181 of the Criminal Procedure Act 1921 (SA) (‘the CP Act’) to amend the Information where defects were identified.
4.The learned Magistrate erred in dismissing the Information under r 64.1(1)(c) of the Joint Criminal Rules 2022.

The respondent also filed a Notice of Alternative Contention. The respondent contends that the decision to dismiss the Information should have also been made on the following grounds:
1.That the expiation notice issued to the respondent did not sufficiently identify the general nature of the alleged offence as laid in Court, such that the relevant limitation period was six months from the date of the alleged offence, in accordance with s 52(1)(a)(ii) of the Act.
2.Accordingly, the limitation period expired on 10 October 2023. The Information filed on 13 October 2023 was therefore statute barred and liable to be dismissed.

Central to the grounds of appeal is a complaint that the Magistrate mischaracterised the nature of the amendments that the prosecution sought to make to the Information. There is no dispute on this appeal that if the amendments proposed by the prosecution created ‘a new charge’ or ‘a new proceeding’, the application to amend was correctly refused, as the respondent would have been denied the immunity which s 52 of the CP Act provides.
It was the appellant’s contention that the Magistrate erred in refusing the application to amend the Information, as both…

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 Smith

Details

AGLC: Police v Smith [2025] SASC 183
Case: [2025] SASC 183
Decision Date: 6 November 2025

CaseChat Overview and Summary

In the case of Police v Smith, the respondent appealed against the decision of a Magistrate who dismissed a charge of driving under the influence of methylamphetamine due to errors in the particulars of the offence. The respondent was initially issued an expiation notice but elected to be prosecuted. The prosecution entered charges into the BEAMS system, but due to a typographical error, the BEAMS summons contained a duplicated offence and an incorrect reference to the statutory section. The Magistrate dismissed the charge, finding that the errors prejudiced the respondent and amounted to an impermissible attempt to avoid the six-month limitation period.

The legal issues in this case revolved around whether the Magistrate was correct in dismissing the charge due to the typographical errors and whether the prosecution's proposed amendments were prejudicial and out of time. The Supreme Court had to determine if the errors were material and whether they prejudiced the respondent or constituted an attempt to allege a new offence outside the statutory limitation period.

The Court found that the errors were purely typographical and not material. The Court reasoned that the errors did not create any ambiguity or confusion regarding the allegations against the respondent. Furthermore, the Court held that the proposed amendments would not have resulted in the formulation of a new or different charge. The Court also noted that the respondent was not misled or disadvantaged by the administrative oversight given the other details on the Information. The Court concluded that the Magistrate was in error in failing to amend the Information to correct the typographical errors.

The Court allowed the appeal, set aside the Magistrate's orders, and amended the Information by correcting the errors. The matter was remitted back to the Magistrates Court for trial before another Magistrate. The Court's decision underscores the importance of correcting minor administrative errors in legal documents to ensure fair and just proceedings.

Orders

Orders of the court

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Background

Background to the litigation

Both the grounds of appeal and the notice of alternative contention are amended versions of the documents initially filed. As a consequence, the appellant and respondent require leave to rely on the amended version of their respective applications. Neither opposes the other being granted leave and I so order.[2][2] Joint Criminal Rules 2022 (SA) r 30.1(3). Background On 10 April 2023, the respondent was driving a motor vehicle on Onkaparinga Valley Road, Woodside, when he was stopped by police for the purpose of conducting a random breath test. The respondent returned a positive result to a drug screening test. The respondent then provided an oral fluid sample, which was forwarded to Forensic Science SA for analysis. Between 14 and 27 April 2023, the analysis was conducted and methylamphetamine was detected in the sample. On 29 April 2023, the respondent was issued with an expiation notice for the offence of “MOBILE DRIVER TESTING – METHYLAMPHETAMINE”. As mentioned, on 27 July 2023, the respondent elected to be prosecuted for the offence. The adjudication process On 25 August 2023, APP Symons was allocated the task of adjudicating the matter. The adjudication process involves a police prosecutor considering the evidence, advising on whether a prosecution should be commenced, and if so, nominating the offence/s to be charged. For matters that begin as expiation notices, BEAMS is the system used by police for adjudications. When a matter is adjudicated, the prosecutor enters the proposed charges onto the BEAMS system, and an administrative employee from the prosecution unit creates a summons and emails the summons to the relevant court registry. The summons generated by the BEAMS system does not contain the description of the offence (‘the offence details’), only the particulars of the offence. Upon receipt of the BEAMS generated summons, court staff are required to manually transfer the data to the Electronic Court Management System (‘ECMS’). At that point, court staff also add in a description of the offence. An ECMS generated summons is then created by court staff, which is sent back to the prosecution unit administration team, in order for the service of the summons to be facilitated by police. On 25 August 2023, APP Symons entered a charge of “47BA(1)(A) RTA” into BEAMS, which created count 1 on the Information. For reasons that APP Symons cannot now recall, she did not complete the adjudication process that day. On 6 October 2023, APP Symons went back to the file and erroneously entered into BEAMS another count of “47BA(1)(A) RTA”. That had the effect of creating two counts on the Information when there should have only been one. At that time, the duplication error went undetected. On 12 October 2023, the BEAMS summons was generated by the Mount Barker Prosecution Unit administration team, which contained the erroneously duplicated offence. This summons was emailed to the Mount Barker Magistrates Court Registry (‘the Registry’) on 13 October 2023.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

This was plainly a typographical error of a very minor nature. It was the type of error which was readily amenable to an amendment under s 181 of the CP Act. The amendment would not have resulted in the formulation of a new or different charge laid out of time. The Magistrate was in error in failing to amend the Information by replacing the letter “l” with the number “1”. Conclusion I find that grounds 2, 3 and 4 have been established. I make the following orders: 1.I allow the appeal.2.The orders of the Magistrate are set aside.3.Count 2 of the Information be amended to delete the words “Incomplete Charge Info” and add the words “Drug drive” before the particulars of the offence, and to amend the subsection of section 47BA from (l) to (1).4.The matter be remitted back to the Magistrates Court for trial before another Magistrate.

Ratio Decidendi

Legal Principle Established

Again, it cannot possibly be suggested that the respondent was in any way misled or disadvantaged by this administrative oversight given the other details contained on the Information.Consideration of the Grounds of Appeal Although grounds 1 and 2 only relate to the error in the reference to the statutory section creating the offence in the particulars, there were, of course, two errors. It would seem that it was on the basis of the combination of those two defects that the Magistrate dismissed the charge.[24] That decision turned on a finding by the Magistrate that to permit the prosecution to amend the Information to correct those matters would amount to alleging a new offence, which was out of time. Further, that for the prosecution to adopt such a course, would amount to an impermissible attempt to avoid the six-month limitation period, which would be prejudicial to the respondent.[24] The Magistrate’s reasoning is unclear. Although both errors are referred to, her Honour found that to permit the amendment to the particulars would be prejudicial to the respondent. She dismissed the charge on the basis that the offence details were not included and therefore the Information did not comply with r 62.1(7)(a) of the Joint Criminal Rules 2022 (SA). There is no dispute on this appeal that if the amendments proposed by the prosecution created ‘a new charge’ or ‘a new proceeding’, the application to amend was correctly refused, as the respondent would have been denied the immunity which s 52 of the CP Act provides. Whilst it appears that the Magistrate considered the combined effect of the two errors on the Information, in order to give proper consideration to the nature and impact of those errors, it is appropriate to consider each separately.Offence details The requirement for the name of the offence (the offence details/statement of the offence) to be included on the Information arises only as a consequence of s 22A of the CP Act and r 62.1(7)(a). However, neither the CP Act or the Rules require that the statement of the offence must necessarily appear under a separate heading on the Information. It would appear that the standard manner in which this requirement is satisfied, as is apparent from the pro forma Information, is to include these details under the heading “Offence details”. That did not occur here. The issue that then arises is what consequence, if any, did this have for the respondent. The relevant section of the RTA (albeit with the identified error) is contained within the particulars. The particulars also contain the date and location of the offence, as well as the nature of the conduct said to constitute the offence. It cannot be said that the omission of an appropriate entry under the heading of “Offence details” created any ambiguity or confusion about the allegations made by the prosecution. It therefore follows that insofar as it was necessary, any amendment to this aspect of the Information would have been of a technical nature and would have caused the respondent no prejudice.