Supreme Court of Tasmania|2015-08-12|Before: Porter J

The applicant submits that the amendment was sought at an early opportunity before the hearing date, and that accordingly no prejudice would have been cause to the respondent.
The respondent highlights the fact that the decision of the magistrate was a discretionary one. The respondent says that the magistrate took into account all the relevant factors, and that the decision is not plainly wrong. As to Malahoff v White, the respondent does not submit that Cox J applied the wrong principle, and that I should not follow it because it is plainly wrong. Rather, the respondent says that applying the 'pith and substance' test in this case, the outcome is different. That is, this case is distinguishable on its facts.

At the outset, I observe that this category of case should be distinguished from that in which the amendment is sought in respect of a charge which does not disclose an offence known to the law, or where there is a similar defect such as a charge under repealed legislation which has no application. See for instance Tregilgas v Howie [1926] SAStRp 22; [1926] SASR 122, , ; , and as an example of the latter type of case, ;

"14 The law reports are replete with cases dealing with this issue. Fundamental to it ... is the proposition that an order for amendment is not the institution of any proceedings but a step in proceedings instituted by the original complaint. See Wakeley v R [1920] 1 KB 688; McLean v Case & Deignan Pty Ltd (1961) WN(NSW) 476; R v Newcastle-Upon-Tyne Justices; Ex parte John Bryce (Contractors) Ltd [1976] 1 WLR 517, Hayes v Wilson (1984) 10 A Crim R 409. It follows that except in unusual circumstances, it would work an injustice to permit an amendment which has the effect of creating a new charge which would be defeated by a limitation provision if it had been charged by a fresh complaint made at the time of the application to amend. This fundamental proposition has been well established in the civil law since Weldon v Neal (1887) 19 QBD 394. It applies with equal force to the criminal law. See Linehan v Australian Public Service Association (Fourth Division Officers) [1982] FCA 198; (1982) 66 FLR 90, in which case Fitzgerald J referred to the impermissibility of adding 'essential allegations'. But what are essential allegations? Is the alteration of the character of the applicant from the holder of a licence to that of a person acting on behalf of the holder of a licence adding or altering an essential allegation?

15 The test for determining whether an amendment creates a new offence differs slightly from jurisdiction to jurisdiction, although all 'tests' have a common basis. In South Australia, it seems generally accepted that provided the 'pith and substance' of the charge remains the same, the amendment should be permitted. See, eg, Schultz v Pettitt (1980) 25 SASR 427; Crafter v McKeough [1943] SAStRp 57; [1943] SASR 371; Surman v S A Police (1996) 65 SASR 421.

16 In Victoria and Western Australia, the 'common origin' test seems to have found favour. See Kennett v Holt [1974] VicRp 79; [1974] VR 644; Mitchell v Myers [1955] WALawRp 6; (1955) 57 WALR 49.

17 In Queensland, a similar approach has been taken by the application of the 'cognate test'. See Hayes v Wilson (supra). In the Northern Territory, the 'pith and substance', or at least the 'substance' test appears to have been used. See Robbins v Horton (1980) 3 NTR 1.

19 There is little profit to be gained from examining the facts of the many cases which have dealt with this issue, for as Bollen J observed in Surman at 427, ... whatever 'test' is applied, whether the proposed amended charge is different from or cognate, or I might add, not of the same pith and substance as the original charge, is always a matter of degree. Whether the proposed amendment refers to the same or a different section of a statute is relevant to, but not determinative of, the issue. Similarly, whether the proposed amendment adds details or an essential element is also relevant to, but not necessarily determinative of, the issue. It is, as I say, a question of degree in each case." [My emphasis]

After examining the elements which went to make up each of the two different offences under consideration, his Honour continued at [20]:

"At the risk of being criticised for not taking my own advice, I venture to refer briefly to the facts of Fred Wakefield Pty Ltd v Dowd (1979) 20 SASR 328 because they illuminate the correct approach to the issue on this motion. In that case, a complaint purporting to charge an offence under a particular municipal by-law alleged that the plaintiff had, with the 'licence' of the council, painted a sign on a building. The by-law in question forbade the painting of signs on buildings except with the 'permission' of the council. It was held in that case that an amendment to substitute 'permission' for 'licence' was an alteration to the 'pith and substance' of the offence charged and should be refused because its allowance would deprive the appellant of an immunity it would otherwise have had by virtue of a limitation provision."

In the case of Surman v S A Police to which his Honour referred, a magistrate had allowed an amendment to a complaint of attempting to put a vehicle in motion while the defendant had alcohol present in his blood greater than the prescribed concentration, so that it alleged an act of actual driving. The application was made outside the time limit. Bollen J considered the various tests adopted in Australia, although accepting the one adopted in South Australia was the 'pith and substance' test. The magistrate had said that the core essential elements of the offences were the same. At 424, Bollen J disagreed, saying that the original charge had at its core the idea of "attempting to put in motion", whilst the amended count had at its core the idea of "actually driving". His Honour said they were different offences. (The emphasis is mine.)
As an examination of the cases shows, no injustice is done where the amendment results in a defendant facing a charge which is the same in pith and substance to that originally faced, or is a cognate one; that is, allied in nature or akin in quality. Injustice or unfairness may nonetheless arise, depending on the stage of the proceedings at which the application to amend is made.

It is true, of course, that the power to amend under s 31 of the Justices Act is a discretionary one, but the exercise of that discretion in this case called for the making of a legal judgment. That judgment related to the question of degree in the relationship between the existing charge to that sought to be substituted. Was the new one the same in 'pith and substance', or a cognate one? In my view, the answer is in the affirmative on either approach. I would adopt the same approach to the resolution of this issue as Cox J did in Malahoff v White. I accept that in this case it was unclear whether or not the disqualification was by court order, but I do not see that as material. With respect, the magistrate was wrong to say that the two offences were different in pith and substance so as not to justify the amendment 'out of time'.
The common elements of the two offences under the separate Acts are that:
- the person
- drove a motor vehicle
- on a public street in Tasmania
- while he or she was disqualified from driving.
For the offence under s 19A(1) of the RSA, the disqualification has to be under that Act. For the offence under s 13(1) of the VTA, the disqualification has to be within the meaning of that subsection. Because of s 13(2)(a) of the VTA, for these purposes disqualification under the RSA does not amount to disqualification within the meaning of the VTA.
In this case, the only thing which was to change by the amendment was the alleged legal basis of the disqualification. Whether or not the respondent was disqualified is a matter of fact. That allegation would remain after the amendment, and precisely the same act of driving was to be alleged. The application to amend the complaint was heard as a discrete issue, and well in advance of the proposed hearing date.
The motion should be allowed. I order that the complaint be amended in the terms of the application made to the magistrate. I order that the matter be remitted to a magistrate for hearing. By so ordering, I do not intend to exclude the particular magistrate from hearing the matter, but it might be administratively more convenient if I make the order general in its terms.

(Road Safety (Alcohol and Drugs) Act 1970

Safety (Alcohol and Drugs) Act 1970

Barnes v Hovington [2015] TASSC 35 (12 August 2015)

Malahoff v White [1991] TASSC 60; (1991) 14 MVR 450, applied

"A complaint may not be amended, under [the equivalent provision] or any other power, if the result would be to convert a bad complaint into a good one, or to charge the defendant with a different offence. There is a sense, of course, in which to vary the allegation at all is to charge a different offence, but the cases show that what is meant here is a change in the essential elements of the charge - a change in its 'quality or effect' (Williams v Wight [1943] SASR 301-304), or in its 'pith and substance': (Crafter v McKeogh) [above]). Often a question of degree will be involved (Warner v Sunnybrook Ice-Cream Pty Ltd [1968] VicRp 11; [1968] VR 102 at p105)."

Barnes v Hovington [2015] TASSC 35

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Barnes v Hovington [2015] TASSC 35 (12 August 2015)