Ronald Keith Smith v Neil James Hodgson No. SCRG 93/92 Judgment No. 3813 Number of Pages 3 Vehicles and Traffic Offences

[1993] SASC 3813

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA ON APPEAL FROM A COURT OF SUMMARY JURISDICTION AT ADELAIDE BOLLEN J

CWDS
Vehicles and traffic - offences Road Traffic Act - driving at a speed in excess of 60 kph - wrong municipality alleged in complaint - amendment correctly made by justices
Summary Procedure Act 1921 181. Crafter v McKeough (1943) SASR 371; Brodie v Chard (1945) SASR 27 and Hood v Conole (1962) SASR 180, applied.

HRNG ADELAIDE, 3 February 1993 #DATE 3:2:1993
Counsel for appellant:     In person
Counsel for respondent:     Ms J Lee-Justine
Solicitors for respondent: Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 BOLLEN J This is an appeal by an unsuccessful defendant in the Magistrates Court, Adelaide. The appellant was charged on a complaint and summons which alleged that on 4 February 1992 at Adelaide, in the State of South Australia, the defendant drove a motor vehicle, namely a car, on a road, namely Hackney Road, within the municipality of Adelaide at a greater speed than 60 kilometres an hour, namely at about 80 kilometres an hour. That was an allegation of an offence against s.49 of the Road Traffic Act. 2. It is clear that on 4 February 1992 the appellant did drive his motor vehicle along Hackney Road. He was, shall I say, detected by the radar. The police allegation was that the radar showed that the appellant's car was travelling at 80 kilometres an hour. He received an expiation notice. This was the beginning of careless mistakes on the part of the prosecution. It referred to an offence of exceeding 60 kilometres an hour on Hackney Road at Adelaide. 3. I am entitled to take judicial notice of things like the area in and near the municipality of Adelaide. In any event I have been referred to plans which Mr Smith has, which I am sure indicate what he says they indicate although I have not looked at them, and I have, by consent, looked at the UBD Street Directory. That shows Hackney Road as being in the suburb of Hackney. 4. Between the years 1937 and 1945 as I trudged to school I regarded myself as trudging through Hackney. Everybody who has lived any length of time in Adelaide knows that Hackney Road is not within the municipality of the City of Adelaide. This was a mistake on the expiation notice. The appellant fought the case. He was unrepresented. Had he been represented the point about the mistake which was perpetuated in the complaint as he received it and as was originally read in court would have been taken earlier. Eventually the prosecution, not having realised that they were, in a sense, talking about the wrong municipality, town or township, had its attention drawn to this fact by Mr Smith. There was then an application made under the existing legislation to amend the complaint. At first the Justices were minded to do that without hearing the appellant. He prompted them into hearing him. He offered his reasons for opposing the amendment. In effect he was saying that to amend would result in his facing a charge different than that on which he had been brought to court. He did not realise that he could have referred to the expiation notice. I do not think that matters. The Justices of the Peace exercised their discretion to amend. 5. Accordingly an amendment, which was probably again erroneous, was made to alter the word "Adelaide" to "St Peters". It is not at all clear that "St Peters" was the correct amendment. Perhaps it should have been "Hackney" but in the view which I take of the case that does not matter. 6. The appropriate provision at the time to enable amendments to be made was s.181 of the Summary Procedure Act which amended earlier legislation. In effect those provisions gave the court power to amend unless there was "prejudice", on the old legislation, or "substantial prejudice" in the legislation then in force. If the defects in the complaint or information could not appropriately be cured by amendment, the court had power to dismiss the complaint. The appellant alleges that the court should have dismissed it. 7. There is no doubt but that the Justices of the Peace had power to exercise a discretion to amend. 8. The question about amendment in matters like this was really well settled a long time ago. In Crafter v McKeough (1943) SASR 371, Napier CJ said at p.375:-
    "A complaint can be amended to charge a 'different offence' in
    the sense of an offence which is differently described or
    stated, so long as the pith and substance of the charge remains
constant". 9. That is the test that has been applied ever since. It is the "pith and substance" test. 10. In Brodie v Chard (1945) SASR 27, Richards J applied that test. He held that the amendment made below created a charge of driving within the township of Penola as opposed to driving on a road between Penola and Naracoorte. That was a different offence than that charged. He held that "the amendment below should not have been made". 11. Similarly, in Hood v Conole (1962) SASR p.180, Hogarth J found that an amendment to alter a charge of driving on the Dukes Highway near Coonalpyn to driving on a minor, unmade road near Coonalpyn should not have been made. The two were different offences. The "pith and substance" of the matter was not the same once the amendment had been made. What we have here is an error of description. There is no doubt but that the appellant always knew that he was charged with driving at a speed in excess of 60 kilometres an hour along Hackney Road. 12. The Justices, in the course of their reasons, said that their reason for permitting the amendment was that they believed that the case of the defendant was in no way prejudiced as a result. This case is distinguishable from the cases which I mentioned where there was a driving in different places. That is to say, in the cases which I mentioned the first allegation was driving in one place, the second was driving in another place. That is not so here. The allegation has always been a driving on Hackney Road. If the complainant had left out the allegation about in which municipality it happened that would not have mattered. There can be no prejudice by the amendment. The amendment was properly made. It was only a matter of description. There was no prejudice or substantial prejudice or any disadvantage to the appellant. He has appealed only in relation to the making of the amendment and I must dismiss the appeal.