S v White
[2007] TASSC 6
•21 February 2007
[2007] TASSC 6
CITATION: S v White [2007] TASSC 6
PARTIES: S
v
WHITE, Graham Ross
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LDR LCA 34/2006
DELIVERED ON: 21 February 2007
DELIVERED AT: Hobart
HEARING DATE: 14 February 2007
JUDGMENT OF: Blow J
CATCHWORDS:
Magistrates – Procedure – Information and complaint – Form and sufficiency – Duplicity and uncertainty – In general and power of amendment – Assault with indecent intent – Single charge amended to allege multiple assaults at two places.
Justices Act 1959 (Tas), ss29, 31.
Johnson v Miller (1937) 59 CLR 467, S v R (1989) 168 CLR 266, referred to.
Aust Dig Magistrates [66]
REPRESENTATION:
Counsel:
Applicant: P O'Halloran
Respondent: S Bender
Solicitors:
Applicant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2007] TASSC 6
Number of paragraphs: 14
Serial No 6/2007
File No LDR LCA 34/2006
S v GRAHAM ROSS WHITE
REASONS FOR JUDGMENT BLOW J
21 February 2007
This motion to review concerns an order made by a magistrate for the amendment of a complaint. The complaint contains a single charge of assault with indecent intent contrary to the Police Offences Act 1935, s35(3). It has been amended twice. The first amendment was uncontroversial. These proceedings concern the second amendment. The applicant contends that the second amendment should not have been made.
The charge alleges that the applicant, with indecent intent, assaulted an 8 year old girl by rubbing his hand on her genitals while she was wearing underwear. Originally, it alleged that he did that "between the 1st April, 2004 and the 1st November, 2004 at Mole Creek in Tasmania". The first amendment effected only one change: the date "1st April 2004" was changed to "1st October 2004". The second amendment was made during a hearing of the charge on 29 November 2006. During that hearing, the prosecutor sought to amend the complaint so that it read, "… between the 1st April 2004 and the 1st November 2004, at Chudleigh and Mole Creek in Tasmania …". Defence counsel opposed the making of that amendment, but the learned magistrate ordered that the complaint be amended as proposed. The hearing has not been completed.
It is necessary to explain what led up to the making of that amendment. At the beginning of the hearing, the prosecutor sought to tender a videotape of an interview with the complainant, pursuant to the Evidence (Children and Special Witnesses) Act 2001, s5. In that interview, the complainant said to her interviewers that the applicant had touched her between five and twenty times at Chudleigh and Mole Creek in the vicinity of her private parts, but not under her clothing. Defence counsel objected to parts of the interview, and sought to have those parts excluded from the evidence. In the course of discussing his submissions, the learned magistrate said the following:
"And perhaps Miss Dibley [the prosecutor] might be advised, I don't know, to seek an amendment of the complaint so that I am dealing not only with a single event at Mole Creek but with numerous events both at Chudleigh and Mole Creek. Do you want me to do that?"
After further discussion and an adjournment, the prosecutor, not surprisingly, applied to amend the complaint as suggested. The learned magistrate listened to submissions from defence counsel and then made the order for the second amendment. It seems from his comments that the learned magistrate took the view that there was a variance between the complaint and the evidence in support of it, and that it was therefore appropriate to amend the complaint so that there was no such variance.
The learned magistrate referred to the Justices Act 1959, s31. The first three subsections of that section read as follows:
"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
(b) the defendant appears to have been prejudiced by any defect or variance referred to in that subsection –
the justices shall, unless the complaint is amended as provided in subsection (3), dismiss the complaint.
(3) If it appears to the justices that the complaint –
(a) fails to disclose an offence or matter of complaint, or is otherwise defective; and
(b) ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect –
the justices may amend the complaint upon such terms as may be just."
When there is a variance between an allegation in a complaint and the evidence in support thereof, the complaint falls within the description "otherwise defective" in s31(3)(a): Canning v Taylor [1967] Tas SR 42. Thus, in an appropriate case, where there is a variance between the complaint and the evidence as to the date or place of a particular event, a magistrate has a discretion to amend the complaint pursuant to s31(3).
Before the amendment in question, the complaint appeared to allege only one assault – one that occurred at Mole Creek. As a result of the amendment, the complaint, which contains only one count, now alleges an unspecified number of assaults at two different places – Chudleigh and Mole Creek. The Justices Act, s29, contains provisions as to complaints alleging more than one offence. That section reads as follows:
"29 (1) A complaint shall be for one matter only and not for 2 or more matters, except –
(a) in the case of indictable offences, where the matters complained of are such that they may be charged in one indictment;
(b) in other cases, if the matters of complaint are –
(i) substantially of the same act or omission on the part of the defendant, although amounting in law to 2 or more offences or 2 or more matters of complaint; or
(ii) founded on the same facts or are, or form part of, a series of offences or matters of complaint of the same or a similar character; or
(c) where otherwise expressly enacted.
(2) Where several matters of complaint are joined in the one complaint pursuant to subsection (1), each matter of complaint shall be set out in a separate numbered paragraph.
(3) If, contrary to subsection (2), any paragraph in a complaint includes more than one matter of complaint, the justices may, upon such terms and conditions as they think fit, at any stage of the hearing permit the complainant to amend that paragraph so that it shall include only one matter of complaint and to add a new paragraph or new paragraphs with respect to the other matter or matters of complaint.
(4) Where, on the hearing of a complaint, it appears to the justices that the defendant may be prejudiced or embarrassed in his defence because the complaint contains more than one matter of complaint or that for any other reason it is desirable to direct that one or more of the matters of complaint should be heard separately, the justices may order a separate hearing of any matter of complaint.
(5) On the hearing of a complaint that does not comply with subsection (1) –
(a) the justices shall, on the application of the defendant, require the complainant to choose one matter of complaint on which to proceed, and shall strike out of the complaint all other matters, without prejudice to the right of the complainant to lay a fresh complaint against the defendant in respect of any matter so struck out; or
(b) if the defendant does not so apply, the justices shall proceed to hear the evidence, and shall determine which matter or matters of complaint, if any, is or are proved, and may convict the defendant accordingly."
In Johnson v Miller (1937) 59 CLR 467, the High Court considered a complaint that contained a single charge against a hotel licensee which alleged, after an amendment, that a person had been seen coming out of his premises during a specified period on a Sunday morning. In proceedings before a magistrate, it was alleged that 30 persons had been seen coming out of the premises. Thus it was alleged that 30 offences had been committed. The complainant refused to supply particulars showing which of the 30 men was the man to whom the complaint related. The magistrate dismissed the complaint on the ground that it was defective and that the defendant was prejudiced by the defect. The High Court held that the complaint had rightly been dismissed. At 489, Dixon J said the following:
"In my opinion he [the prosecutor] clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence."
That case was followed by the High Court in S v R (1989) 168 CLR 266. S was indicted on three counts of having carnal knowledge of his daughter. The charges each related to different calendar years. The complainant gave evidence of numerous acts of intercourse with her father. No particular acts were identified as the subjects of the three charges. The High Court decided, by majority, that the convictions should be quashed. That case establishes that the Crown is not entitled to lead evidence of crimes occurring on a number of occasions, each of which corresponds with the description of a crime in a particular charge, and then seek a conviction in respect of that charge without identifying one particular crime in the group as the only crime that is relied on as the basis of the charge.
The interview with the complainant contains evidence of the applicant indecently touching her on between five and twenty occasions at Chudleigh and Mole Creek. The complainant said that the touching occurred in three different rooms at one of those places. However she did not describe any of those incidents in any detail. It is not possible, at least on the evidence available from the interview, to identify any particular incident by reference to events that occurred or by reference to a particular room or location.
Before the amendment in question, the complaint alleged a single assault at Mole Creek. The evidence from the interview suggests that the applicant may have committed more than one such assault at Mole Creek. Upon that evidence being admitted, the applicant would become entitled to apply under s29(5)(a) for the learned magistrate to require the complainant to choose one matter of complaint on which to proceed. Unless there was further evidence enabling one particular matter of complaint to be identified, the complainant might have difficulty identifying any individual alleged assault, except perhaps the last one. Even then, on the evidence from the interview, the only identifying characteristic of the last alleged act is that it was the last one.
As a result of the amendment in question, the complaint is now patently defective. The single charge alleges at least one assault at Chudleigh and at least one assault at Mole Creek, in contravention of s29(2), which requires each matter of complaint to be set out in a separate numbered paragraph. For that reason alone, the amendment should not have been allowed.
If the complaint remains in the present form and the hearing continues, then, upon the interview or parts thereof being admitted into evidence, the applicant will be entitled to apply under s29(5)(a) for the magistrate to require the complainant to elect one matter of complaint on which to proceed. The complainant would then be entitled to choose either an alleged assault at Chudleigh or an alleged assault at Mole Creek, provided one could somehow be identified.
Under the Police Offences Act, s35(5), a complaint in relation to this sort of offence may be made within 12 months after the date of the offence. The six-month limitation period in the Justices Act, s26(1)(a), does not apply. The complaint is dated 7 March 2005. Section 35(5) is therefore of no significance in relation to any assault that might be found to have occurred at Mole Creek during the period to which the complaint now relates – that from 1 April 2004 to 1 November 2004. However s35(5) is significant in relation to the allegation that the applicant assaulted the complainant at Chudleigh during that period. An assault at Chudleigh was not the subject of the complaint in its original form. No assault at Chudleigh fell within the scope of the complaint until its amendment on 29 November 2006, long after the expiry of the 12-month limitation period imposed by s35(5). If the hearing before the learned magistrate resumes with the complaint in its present form, and if the complainant is required to choose one matter of complaint on which to proceed, it would be unjust for the complainant to be able to proceed in relation to an assault at Chudleigh, since no complaint existed in relation to any such assault until more than 12 months after it occurred. The learned magistrate should have refused the amendment on the ground that it introduced a charge of a completely different assault (or an unspecified number of completely different assaults) at Chudleigh when no such assault had been the subject of a complaint within the 12-month limitation period.
In a nutshell, the learned magistrate should have refused the amendment in question because it made the complaint duplicitous, and facilitated an unjust circumvention of the limitation period imposed by s35(5). I therefore allow the motion to review, quash the order making the amendment of 29 November 2006, and order that there be a new hearing of the complaint before a different magistrate.
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