Demetriou v DPP [2000] NSWSC 1060 | Case summary

1 HIS HONOUR: By her summons filed on 4 August 2000 the plaintiff, Maria Demetriou, seeks "an order in the nature of a common law prohibition" directed to the second defendant, a magistrate sitting in the Local Court. A submitting appearance has been filed by him and the first defendant, the Director of Public Prosecutions, has appeared to resist the plaintiff's claim. The plaintiff's summons also seeks as a basis for her claim for relief, an order in the nature of a statutory prohibition under s 112 of the Justices Act. That section has, of course, been repealed, the repeal being effective from 1 March 1999, and it has no possible application in this case, where the decision that prompted this summons was made on 20 July 2000. 2 The plaintiff was involved in a motor vehicle accident on 17 September 1995 and in consequence was charged with a number of offences. Indeed, the affidavit of her solicitor sworn on 3 August 2000 discloses that following and in relation to the accident the plaintiff was served with "approximately ten informations and summonses issued at the Hornsby Local Court on 13 March 1996". Mr Halbert's affidavit further discloses that the plaintiff was subsequently committed for trial on four charges, but that shortly before 12 July 1999 the first defendant decided not to proceed on them. Mr Halbert deposed that eventually there were left pending four informations alleging summary offences under the Traffic Act, three of which charged offences under s 4(1) and the fourth of which charged an offence under s 4E(1F)(a). Then the first defendant decided to proceed only upon the fourth charge, the substance of which was that the plaintiff drove a motor vehicle whilst there was present in her blood the middle range prescribed concentration of alcohol. 3 The hearing in respect of this charge took place at the Downing Centre Local Court on 17, 19 and 20 July 2000. On that last date the magistrate found the offences proved, but discharged the plaintiff conditionally upon her entering into a recognizance to be of good behaviour for three years. 4 The nub of this appeal is to be found in an error in the information. It was laid on 13 March 1996, before the expiration of six months from the date of the accident giving rise to the charge. The information was therefore laid within the time prescribed by s 56 of the Justices Act. The information however recorded that the informant informed the justice who issued the summons that the offences occurred "on the seventeenth day of September in the year of Our Lord one thousand nine hundred and ninety six", that is some six months after the information was laid. The conclusion is irresistible that the information contained a typographical error, and plainly it should have read "on the seventeenth day of September in the year of Our Lord one thousand nine hundred and ninety five." 5 The error in the information was not detected, or at least it was not drawn to the attention of the court, until the hearing had concluded and the magistrate had begun to deliver judgment. The judgment commenced: "The defendant [the plaintiff] is charged that on 17 September 1996…" and the magistrate then paused. Counsel appearing for the plaintiff in the court below then submitted that the second defendant could not amend the information and that s 65 of the Justices Act had no application. Having heard argument, the magistrate adjourned to consider the matter and on returning to the bench said: "The information does allege 17 September 1996. The information was in fact laid on 13 March 1996. The information is laid within the six months. It in fact alleges an offence said to have occurred almost six months after the date of the information. In those circumstances, in my view, the date in the information is clearly a typographical error and I propose to treat it as a matter which can be varied under s 65 and to vary it to read 17 September 1995 and I make that variation." 6 It is contended by the plaintiff that the decision of the magistrate was wrong in law, that the information was a nullity and that the plaintiff was denied natural justice in the events that occurred. 7 Mr Shields of Queen's Counsel submitted that the magistrate was not empowered to take the course he adopted, and that once the six months had elapsed from the date of the accident any error in the expression of the date in the information was incurable. Mr Shields further submitted that the information did not give the Local Court jurisdiction in its form prior to the amendment because it was bad on its face. 8 Having considered all the authorities to which I was referred in the course of argument, I am not persuaded that there was error in what the magistrate did. 9 As earlier observed, the information was laid within six months of the corrected date of the offence. 10 Section 65(2) of the Justices Act provides: " (2) No variance between any information and the evidence adduced in support thereof at the hearing in respect of the time or place at which the offence or act is alleged to have been committed shall be deemed material if it is proved that the information was in fact laid within the time limited by law in that behalf or that the offence or act was committed in New South Wales, as the case may be." 11 In Bennett v Daniels (1912) 12 SR 134 an information charged that on a certain date the respondent erected a hoarding without a licence and the evidence showed that the structure, though not completed on the date mentioned in the charge, was completed and indeed used for advertising purposes before the information was laid. The magistrate dismissed the information on the ground that on the date specified the structure was not a hoarding because it had not by then been used for advertising. The Court of Appeal determined that the magistrate was in error. 12 In the course of his judgment at 138 the Chief Justice said: "The mere fact that on the date mentioned in the information there may not have been a breach of the ordinance proved, would not of itself have been a sufficient ground for dismissing the information in view of the provisions of the Justices Act…, section 65. Under that section it was the duty of the magistrate to amend, if necessary, and if the variance were such as would mislead the defendant, to adjourn the case." 13 Ex parte Bignell (1915) 32 WN 91 is authority for the proposition that the date of the alleged offence is not generally an essential part of the information. In Bignell the information charged the defendant with an offence but did not specify the date of it. Ferguson J discharged a rule nisi for prohibition on that ground. His Honour said at 92-93: "It is clear from the Justices Act that an accurate statement of the date of the offence is not essential" (and his Honour then referred to what is now s 65(2) of the Justices Act ). 14 His Honour went on: "No doubt it is very desirable that the date of an offence should be stated in an information, and correctly stated, in order that the defendant should have the fullest information as to the details of the offence with which he is charged, but if in any particular case the defendant is liable to suffer injustice by reason of the want of precision in the charge, it is within the power of the magistrate, and it is the duty of the magistrate, to see that he is protected. I have no doubt that in this case, if the magistrate had any reason to believe that the defendant was put to any real disadvantage in the conduct of his defence by reason of the date not being alleged in the information, he would have granted an adjournment." 15 Ex parte Bluett re Nyngan Municipal Council (1929) 46 WN 120 is a further illustration of the power to amend an information to specify the time of the commission of the offence. In this case the information was laid under the Local Government Act for a failure to appoint and employ a town clerk on the occurrence of a vacancy. The information did not set out the time at which the offence was stated to have occurred. The informant applied for leave to amend the information to correct that omission but the magistrate refused that application. It was held that the magistrate was wrong. Halse-Rogers J said at 121: "The magistrate's decision on the appointment actually taken was erroneous, and I think, in view of the decisions in the cases which were cited to me during the course of argument, that it was clearly his duty to make the amendment then asked for, and to allow the matter to proceed…" 16 Mr Shields referred to and relied upon the decision in Ex parte Lovell; re Buckley (1938) 38 SR 153, and in particular to the following statement of principle by Jordan CJ at 173: "A magistrate has no jurisdiction to convict a person except for a statutory offence; and it is contrary to natural justice to convict a person of a statutory offence with which he has not been charged. Hence, in order to support a conviction for an offence, it is necessary either that the information and summons upon which it is based should accurately state the acts necessary to constitute all the ingredients of that offence, or else, if they do not, that the accused person should have been accurately charged orally before the magistrate and should have raised no objection to the absence of information or summons: s 133. Section 65 of the Justices Act, 1902, does not enable a magistrate to convict of an offence upon an information which discloses no offence, or to convict of an offence alleged in the information if the evidence does not support that offence, or to convict of an offence established by the evidence if it is a different offence from that charged in the information. If it appears to the magistrate that what is alleged in the information does not constitute an offence, or that the evidence discloses another and different offence, he may go on with the trial if the accused is thereupon orally charged with the actual offence upon which it is proposed to proceed, and he takes no exception to the absence of information or summons; any necessary adjournment being of course allowed to prevent injustice. If, however, the accused does object, there is nothing in s 65 which obviates the necessity for an information and summons accurately charging the accused with the statutory offence of which it is proposed to convict him. If the magistrate convicts upon an information or charge which discloses no offence, or for an offence with which the accused has not been duly charged, the conviction is bad." 17 In Parmeter v Proctor (1949) 66 WN 48 it was held that an allegation in an information charging the appellant with a driving offence in street A when the evidence showed the offence was committed in street B could be regarded as a variance for the purposes of s 65 of the Justices Act. In this case Herron J cited with approval the dicta of Ferguson J in Ex parte Bignell set out above. Herron J also expressed his agreement with what had been said by the Chief Justice in Ex parte Lovell; re Buckley but in context of such expression went on to say at 50: "With great respect, these are observations with which I entirely concur, but it cannot be said that merely because there is some misdescription of date, time or place of an alleged offence, or of a number of other incidental matters to the charge that the magistrate is correct in dismissing it - mistakes as in stating the name of the prosecutor of the accused do not warrant the dismissal of the information: Ex parte McAuley (1944) 44 SR 258. As to a variance as to the place where the offence was committed: see Sherwood v Haccles (1904) 21 WN 61. It must be observed of course that a variation in date and place may so grossly misrepresent the position as to charge in effect a different offence altogether. One can easily understand that if A is charged with stealing in Dubbo on 1st January that this would by no means warrant a conviction for his stealing in Grafton on 30th June." 18 In Platt v Sloman (1946) IAR 324 informations were laid by the appellant alleging offences by the respondent in March 1945. At the hearing before the magistrate the appellant sought leave to amend the informations by substituting the month of April for the month of March. The magistrate refused leave because if the amendments were allowed the proceedings on the amended informations would not be maintainable because of the limitation period imposed by s 56 of the Justices Act. On appeal the magistrate was held to be in error. In their joint judgment Webb, Ferguson, and De Baun JJ said at 329-330: "In our opinion, the informant was entitled to proceed on the informations as laid and to tender evidence as to the times at which the offences were committed though the times differed from those stated in the informations, provided only that the times sought to be proved were not in any case outside a period of six months from the date when the informations were exhibited. As we read it the very purpose of s 65(2) is to render the time or place immaterial as an allegation in an information or complaint and the section expressly contemplates that proof of the time or place at which the offence or act is alleged to have been committed may be given, though the time or the place or both differ from what is alleged in the information or complaint…" 19 With the above review of the authorities in mind, I return to the present case. Had the date of the alleged offence not been included in the information in the first place the authorities reviewed make it clear that that omission could have been addressed under s 65 of the Justices Act provided that the information was laid within six months of the date upon which on the prosecution case the offence was committed. The situation is no different where, as here, the date was incorrectly stated; the corrected date was inside the period of six months from the date the information was laid and it was open to the magistrate to take the course that he did take save only for consideration of the matters raised in s 65(3) of the Justices Act. That sub-section provides: " (3) `Where any such defect or variance appears to the Justice or Justices present and acting at the hearing to be such that the defendant has been thereby deceived or misled such Justice or Justices may upon such terms as the Justice or Justices may think fit adjourn the hearing of the case to some future day." 20 Had it been the case that the plaintiff had been deceived or misled by the incorrect expression of the year in which the offence was alleged to have occurred, then it would have been incumbent upon the magistrate to afford the plaintiff an opportunity to consider his position. The interests of justice and, indeed the provisions of s 65(3), would have required no less. 21 However, in the present case the effect of the amendment made by the magistrate was not to confront the plaintiff with a charge different from that which the plaintiff understood was already before the court. Prior to this amendment the information charged the defendant with driving a motor vehicle identified by its registered number on Babbage Road whilst there was present in her blood a middle range prescribed concentration of alcohol. It could not be contended that the error in the date misled the plaintiff in any way. The plaintiff had been involved in an accident on 17 September 1995 in the street identified in the information, and after the accident had been admitted to hospital. There was simply no room for her having been misled by the misstated date. 22 In his judgment, and the magistrate's reasons were annexed to the second affidavit of Mr Halbert sworn on 9 November 2000 and read in support of the summons, .the magistrate reviewed evidence called by the prosecution and by the plaintiff, all of which was directed at the events that occurred on 17 September 1995. The evidence adduced before the magistrate by the prosecution was directed to the proof of an offence committed on that date and the evidence adduced in the plaintiff's case was directed to refute the commission of the offence on that same date. Moreover, the plaintiff had had available to her the information from the time it had been served together with the other summonses and informations to which Mr Halbert's earlier affidavit referred. The conclusion is inescapable that the plaintiff was not misled by the incorrect year being stated on the information; otherwise she would not have been in a position to direct her attention to meeting in evidence the prosecution case concerning the accident on 17 September 1995, and the offence allegedly committed then. 23 I am satisfied that the plaintiff was not prejudiced in the preparation of her case by the misstatement of the date. 24 Nor was there any procedural unfairness in what occurred when the magistrate realised the error in the information. Counsel for the plaintiff was given the opportunity to address the magistrate before the information was amended and the magistrate then retired to consider his decision before proceeding in the manner in which he did. 25 In my opinion nothing occurred in the Local Court calling for the intervention of this Court. The summons is accordingly dismissed and I order the plaintiff to pay the first defendant's costs of the proceedings in this Court. **********

Demetriou v DPP

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