Justices Act 1959 ss 26, 31;

Traffic (Road Rules) Regulations 1999; Road Rules 2009; Road Rules 2019;

Traffic Act 1925; Vehicle and Traffic Act 1999;

Subordinate Legislation Act 1992 s11;

Canning v Taylor [1967] TASStRp 4; [1967] Tas SR 42; Wickham v Cole [1957] TASStRp 10; [1957] Tas SR 111; Breen v ibson Serial No 59/1979; Malahoff v White [1991] TASSC 60; Tregilgas v Howie [1926] SAStRp 22; [1926] SASR 122; R v Jiri Fiala, ex parte G J Coles & Co Ltd (1986) 46 SASR 47; Starling v Ostrowski [2001] WASCA 74; Jerrim v Smith; Bedi v R [1993] SASC 4210; (1993) 61 SASR 269, Taylor v Environment Protection Authority (2000) 50 NSWLR 48, McConnell Dowell Contractors (Aust) Pty Ltd v Environment Protection Authority [No. 2] [2002] NSWCCA 24; (2002) 54 NSWLR 39 and Kowalski v Cole [2012] SASC 30 at [17].

Decision Number: [2025] TASMC 4

CONSTABLE JULIE McCULLOUGH v BRONWYN MARIE AUKSORIUS

1. The defendant has been charged on complaint 3150/2024 with drive under the influence of a drug contrary to s4(b) of the Road Safety (Alcohol and Drugs) Act 1970 and two counts of fail to comply with the duties of a driver involved in a crash contrary to regulation 287 (1) and (2) of the Traffic (Road Rules) Regulations 1999.
2. This decision concerns the two counts of fail to comply with the duties of a driver involved in a crash. The prosecution has applied to amend those charges. That application is opposed.
3. It was agreed this decision would be handed down today because I am due to hear a further application which is to be filed by the defendant seeking to change her pleas to each charge from guilty to not guilty.[1]

1. The charges the subject of the application appear in the complaint in the following form:

CHARGE: Fail to comply with the duties of a driver involved in a crash - (Civilian parties).

BREACH OF: Regulation 287 (1) & (2) Traffic (Road Rules) Regulations, 1999.

PARTICULARS: You are charged with on the 18th January, 2024 being the driver of a vehicle involved in a crash on a road, namely Road related area, Bridgewater McDonalds Bridgewater in Tasmania, and you failed to give the required particulars, namely your name and address, the registration number of your vehicle to the owner of the vehicle damaged in the crash within the required time and, where it was practicable, at the scene of the crash.

CHARGE: Fail to comply with the duties of a driver involved in a crash - (Civilian parties).

BREACH OF: Regulation 287 (1) & (2) Traffic (Road Rules) Regulations, 1999.

PARTICULARS: You are charged with on the 18th January, 2024 being the driver of a vehicle involved in a crash on a road, namely Main Road Glenorchy in Tasmania, and you failed to give the required particulars, namely your name and address, the registration number of your vehicle to the owner of the vehicle damaged in the crash within the required time and, where it was practicable, at the scene of the crash.

1. The prosecution handed up a document which set out the proposed amendments. Apart from some punctuation differences it was proposed that the substance of the particulars would be identical to those set out in paragraph 4. The amendment sought to substitute the provision which had been allegedly breached by deleting Regulation 287 (1) & (2) Traffic (Road Rules) Regulations 1999 and inserting Road Rules 2019: Rule 287(1) and (2). In summary all that the amendment sought was to substitute the legislation in which the charge appeared.

1. The Traffic (Road Rules) Regulations 1999 (the 1999 Regulations), apart from Division 2 of Part 14, took effect on 1 December 1999. Division 2 of Part 14, which is not relevant to this case, took effect on 1 December 2000. Regulation 287 therefore came into effect on 1 December 1999.[2] The 1999 regulations were made under the Traffic Act 1925[3]. Regulation 287 is in the following terms:

(1) A driver involved in a crash must comply with this rule.

Note 2: The law of this jurisdiction also requires a driver involved in a crash to stop and give assistance to anyone who is injured.

(2) The driver (or the driver's representative) must give the driver's required particulars, within the required time and, if practicable, at the scene of the crash, to -

(a) any other driver (or that driver's representative) involved in the crash; and

(b) any other person involved in the crash who is injured, or the person's representative; and

(c) the owner of any property (including any vehicle) damaged in the crash (or the owner's representative), unless, in the case of damage to a vehicle, the particulars are given to the driver of the vehicle (or the driver's representative).

(3) The driver (or the driver's representative) must also give the driver's required particulars, within the required time, to a police officer if -

(b) the driver does not, for any reason, give the driver's required particulars to each person mentioned in subrule (2) ; or

(c) the required particulars for any other driver involved in the crash are not given to the driver; or

(d) a vehicle involved in the crash is towed or carried away by another vehicle (except if another law of this jurisdiction provides that the crash is not required to be reported); or

(e) the crash is required to be reported to a police officer under another law of this jurisdiction.

Note: Police officer is defined in the dictionary.

required particulars, for a driver involved in a crash, means -

(b) the name and address of the owner of the driver's vehicle; and

(c) the vehicle's registration number (if any); and

(d) any other information necessary to identify the vehicle; and,

for subrule (3) , includes any other information required to be given to a police officer about the crash under another law of this jurisdiction.

Note: Driver's vehicle is defined in the dictionary.

required time, for a driver involved in a crash, means as soon as possible but, except in exceptional circumstances, within 24 hours after the crash."

1. By virtue of s11(2)[4] of the Subordinate Legislation Act 1992 the 1999 Regulations were repealed on the tenth anniversary of the date on which they were made; that is they were repealed on 30 November 2009. On that day the Road Rules 2009 took effect[5]. Those rules were made pursuant to the regulation making power contained in s45 of the Vehicle and Traffic Act 1999 which commenced on 14 August 2000.[6] Regulation 287 in the Road Rules 2009 is almost in identical terms to regulation 287 in the 1999 Regulations.
2. By virtue of s11(2) of the Subordinate Legislation Act 1992 the Road Rules 2009 were repealed on the tenth anniversary of the date on which they were made. On 25 November 2019[7] all the regulations contained in the Road Rules 2019 took effect apart from rule 79A which took effect on 1 December 2019. Regulation 79A is not relevant to this case. The Road Rules 2019 were also made under the Vehicle and Traffic Act 1999. Regulation 287 in the Road Rules 2019 is in identical terms to regulation 287 in the Road Rules 2009 and therefore it is in almost identical terms to regulation 287 in the 1999 Regulations.

1. The power to amend a complaint is contained in section 31 of the Justices Act 1959. That section, omitting irrelevant parts, is as follows:

(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.

1. It is implicit from the submissions of the prosecutor that the evidence he would lead to prove the charges under the 1999 Regulations was the same as the evidence he would lead to prove the charges under the Road Rules 2019. Accordingly what was sought by way of amendment was to correct the alleged defect therein or either it was a non-material variance; see s31(1) of the Justices Act 1959. A variance of this kind, if such a variance can be characterised as non-material, is capable of making the complaint "otherwise defective" within the meaning of s31(3)(a) of the Justices Act 1959 ( See Canning v Taylor [1967] TASStRp 4; [1967] Tas SR 42 per Burbury CJ at p49; Gibson J at p50 who expressed his agreement with the reasons of the Chief Justice with a qualification which is not relevant to this case; and Crawford J at p58).
2. In Wickham v Cole [1957] TASStRp 10; [1957] Tas SR 111 Burbury CJ at pp 115-116 made the following comments about the predecessor to s31 of the Justices Act 1959:

"The purpose of the procedural amendments to the Justices Procedure Act made by Parliament in 1954 was to avoid justice being defeated and the law being brought into contempt through police magistrates and other justices of the peace being required to dismiss charges against defendants by reason of unmeritorious technical objections to the precise form in which those charges are laid. But these procedural amendments clearly cannot be construed so as to justify any departure from what is a fundamental rule of the administration of criminal justice; that a man may only be convicted if the evidence establishes beyond reasonable doubt that he is guilty of the specific charge laid against him. He cannot be convicted upon some other charge which may be proved by the evidence. The charge against him must clearly inform him of the legal nature of the offence and the facts basic to it. He goes to court prepared to meet that charge as so pleaded. An amendment may only be granted so long as he is given adequate opportunity to meet the new material. And at the close of the whole case he may only be convicted upon the charge as originally framed subject to such amendments as may properly have been made and which he has had an opportunity to meet."

"But of course the discretion to amend must be exercised judicially. An amendment of substance either to the legal nature of the offence or to the material facts relied upon as the foundation to the charge could not properly be allowed without giving the defendant full opportunity to answer the newly framed charge. In the case of a material departure from the charge as laid no amendment could be entertained at a stage in the proceedings which would be too late to enable the defendant fairly to meet the amended charge. It is difficult to imagine a case where the interests of justice would require a fundamental amendment to be made except at the commencement of the proceedings. A prosecutor must be alert to apply for an amendment as soon as variation between the evidence and the charge as laid appears. He should ordinarily be aware of such a variation and apply to amend the complaint at the commencement of the proceedings."

1. In Breen v Gibson Serial No 59/1979, Neasey J upheld the power of a Magistrate to amend the complaint by altering the charge from refusing to submit to a breath test, contrary to s8(4) (as it then stood) of the Road Safety (Alcohol and Drugs) Act 1970 to the charge of refusing to submit to a breath analysis test, contrary to s14(2) of that Act. The case had been conducted by both parties on the basis that the latter charge had been laid. It was the Magistrate who raised the issue that the wrong section appeared in the complaint. At p3 of his decision Neasey J said:

"The purpose of the procedural amendments represented by these powers in s31 is explained by Burbury CJ in Wickham v Cole (supra). The overriding question is whether an amendment of the kind contemplated by s31 can be made without injustice to the defendant, but if it can be, the general intent of the section is that it should be."

1. Cox J, as he then was, said the following in Malahoff v White [1991] TASSC 60:

"The Tasmanian legislation as to the power of Courts of Petty Sessions to amend complaints is, in substance, the same as that of South Australia. In Crafter v McKeough [1943] SAStRp 57; [1943] SASR 371, Napier CJ said at p375:

'I adhere to the opinion expressed in Williams v Wight ([1943] SASR 301), namely, that a person charged with one offence cannot be convicted of an entirely different offence; but, nevertheless, the 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.'

In Schultz v Pettitt (1980) 25 SASR 427, Cox J had to deal with an amendment by justices to a complaint so as to allege the commission of the same offence on a day some three months earlier than that stated in the complaint. His Honour said at p433:

'A complaint may not be amended, under s183 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), or in its 'pith and substance' (Crafter v McKeogh). Often a question of degree will be involved, Warner v Sunnybrook Ice-Cream Pty Ltd [1968] VicRp 11; [1968] VR 102 at p105'

He held that the amendment of the date was properly made".

1. In this case Mr Tye submitted there was no prejudice to the defendant, on the assumption she could read, because she would have known from the very beginning; that is when she was served with the complaint, the nature of the charge and that would not change if the amendment was allowed. In summary it was the same charge just laid under different legislation. He indicated it was an administrative error which led to the charge being laid under the wrong regulations. Mr Tye submitted "the pith and substance would not change one bit."
2. If the amendment sought is not permitted then the prosecution will be out of time to lay a fresh complaint as 6 months has passed[8] since the alleged offence.
3. In Tregilgas v Howie [1926] SAStRp 22; [1926] SASR 122, Murray CJ said at page 124:

"that no offence was alleged in the complaint does not admit of doubt.... Then the question is whether the so-called "complaint" could be amended...[and]...that if no offence is disclosed in the complaint until it is amended, the time from which it becomes a good complaint is the time of making the amendment". He therefore held a complaint which did not disclose an offence could not be amended outside the limitation period so as to charge an offence.

1. In R v Jiri Fiala, ex parte G J Coles & Co Ltd (1986) 46 SASR 47, Jacobs J said at p59:

"Put another way, it was said that these counts disclosed no offence, at least in respect of place, if not of time, until after the amendment was made and Tregilgas v Howie (supra) is a clear authority that such an amendment cannot be made when the complaint is thereby out of time. That argument ought to prevail if indeed we are obliged to hold that counts 2 to 9 disclose no offence unless amended."

1. In Starling v Ostrowski [2001] WASCA 74 the Full Court of Western Australia said at paragraph 24:

"In the present case the complaint describes no offence known to law. To amend such a complaint, in which an essential element of the offence has been omitted, may properly be regarded as amounting to the commencement of fresh proceedings for the purposes of the limitation period, and therefore as being out of time." The Full Court therefore disallowed the amendment which had been sought.

1. Cox J, as he then was, in Malahoff v White (supra) at paragraph 16 said:

"I see no warrant for the assertion that a valid complaint, as this clearly is, cannot be amended after the limitation time has expired if this can be done without injustice. In R v Newcastle-upon-Tyne Justices, ex parte John Bryce (Contractors) Ltd [1976] 2 All ER 611, the Court of Appeal held that justices had power to amend so as to allege a new offence out of time. May J at p614, delivering a judgment in which Lord Widgery CJ and Park J concurred, said:

'In my view the six months' limitation provision in the 1952 Act is to ensure that summary offences are charged and tried as soon as reasonably possible after their alleged commission, so that the recollection of witnesses may still be reasonably clear, and so that there shall be no unnecessary delay in the disposal by the magistrates' courts throughout the country of the summary offences brought before them to be tried. It is in this context that their power to permit the amendment of an information, referred to by Lord Widgery CJ, is to be exercised; it must be exercised judicially; it must be exercised so as to do justice between the parties. But where it can be so exercised, where an information can be amended, even to allege a different offence, so that no injustice is done to the defence, I for my part can see no reason why the justices should not so exercise it even though, as I say, the amendment is allowed after the expiry of the six months' period from the commission of the alleged offence.'" (my emphasis)

1. In this Court, Magistrate CP Webster in Jerrim v Smith [2020] TASMC 6 refused an application to amend a complaint out of time when the complaint failed to contain a valid charge as the charge set out in the complaint omitted an essential element of the offence. Likewise in The Police v James Burrows (6493/2019) (an unpublished decision) His Honour dealt with a complaint which charged the defendant with exceeding the speed limit on 7 April 2019 in that he travelled at 100km/h in a 140km/h speed zone. An amendment was sought to amend the speed to 140km/h in a 100km/h zone outside the 6 month time limit. That amendment was not allowed as the complaint, as drafted, did not allege an offence known to the law. The complaints in both these cases were dismissed. The amendments sought to convert a bad complaint into a good complaint outside the permissible time limit. A bad complaint is one that does not disclose an offence at all or it omits an essential element or elements of the offence charged: see Bedi v R [1993] SASC 4210; (1993) 61 SASR 269, Taylor v Environment Protection Authority (2000) 50 NSWLR 48, McConnell Dowell Contractors (Aust) Pty Ltd v Environment Protection Authority [No. 2] [2002] NSWCCA 24; (2002) 54 NSWLR 39 and Kowalski v Cole [2012] SASC 30 at [17].
2. In this case Mr Tye relied heavily on Malahoff v White (supra). That case can be distinguished on two bases. The first is in that case the prosecution sought to amend the charge by substituting a provision which was in force at the time of the alleged offence with another provision which was also in force at that time; that is "by alleging a breach of the Road Safety (Alcohol and Drugs) Act 1972 s19A(1) in lieu of the Traffic Act and by alleging in the particulars that the disqualification had been imposed under the former Act rather than the latter."[9] In this case the amendment seeks to substitute a regulation which is not in force and which expired in excess of 15 years ago with one that is in force. While I agree with Mr Tye that the pith and substance between the two charges is the same the difference in this case is the charges which appear in the complaint are no longer part of the law of this State The second basis is the complaint in Malahoff v White (supra) is a good complaint as it disclosed an offence whereas charges 2 and 3 in the complaint in this case are bad. No such offence under the 1999 Regulations existed at the date of the alleged offence let alone at the date of the application for the amendment. The charges which appear in the complaint did not exist at the time the complaint was made and are a nullity. The prosecution cannot seek to amend a charge which did not exist. To permit such an amendment seeks to make a bad complaint in so far as those two charges are concerned into a good complaint. The prosecution's administrative error, if that is what it was, is in my view fatal.
   1. Accordingly I dismiss charges 2 and 3.

[1] A plea of guilty does not validate a conviction where the complaint does not disclose an offence: Ex parte Stanton [1928] NSWStRp 25; (1928) 45 WN (NSW) 118; O'Donnell v Gardiner [1902] ArgusLawRp 25; (1902) 27 VLR 718 and Phillips v Spencer [2006] Qd R 47.

[2] Regulation 2 of the Traffic (Road Rules) Regulations 1999.

[3] See the regulation making power in s43B of the Traffic Act 1925 now repealed.

[4] Section 11(2): "Unless it sooner ceases to be in force, subordinate legislation made on or after the commencement of this Act is repealed on the tenth anniversary of the date on which it was made." Subordinate legislation is defined in section 3 as a regulation that is made by the Governor. The Traffic (Road Rules) Regulations 1999 were made by GSM Green Governor; see the long title to those regulations.

[5] See regulation 2 of the Road Rules 2009.

[6] See section 2 of the Vehicle Traffic Act 1999 and statutory rule number 126 of 2000.

[7] See regulation 2 of the Road Rules 2019.

[8] Justices Act 1959 s26: "(1) In the case of a simple offence that is not an indictable offence, or of a breach of duty, unless some other time is limited for making complaint by the law relating to the particular case, complaint must be made -

(a) within 6 months from the time when the matter of complaint arose;"

[9] Malahoff v White [1991] TASSC 60 at [3]