Resolutions of the issues
16 Before dealing with the central issue, it may be convenient to note first the powers available to the learned magistrate to permit the amendment of the Court Attendance Notice. These powers are to be found essentially in ss 20 and 21 of the Criminal Procedure Act 1986. These sections expressly apply to a CAN by which criminal proceedings are commenced (s 15 Criminal Procedure Act 1986).
17 An indictment may not be amended after it is presented except by the prosecutor with the leave of the Court, or with the consent of the accused (S 20). Where the Court is of the opinion that an indictment is defective, but, having regard to the merits of the case, it can be amended without injustice, the Court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case (s 21 Criminal Procedure Act 1986).
18 Thus, the power to amend an indictment, even a defective one, is clearly bestowed. The question is whether it can be amended "without injustice".
19 It is against the background of these powers that one comes to consider s 16 of the Criminal Procedure Act. This section provides that an indictment is not bad, insufficient, void, erroneous or defective on a number of stated grounds. Relevantly, one of those grounds is contained in s 16(1)(g). This is in the following terms: -
"(g) Except where time is an essential ingredient, for omitting to state the time at which an offence was committed, the stating the time wrongly or for the stating the time imperfectly."
20 The present case, however, was not decided on the basis of the general power in s 21. Rather the learned magistrate looked to see whether, where an offence is charged under s 21(1)(a) of the Road Transport (General) Act 1999, time is an essential ingredient. Her Honour essentially took the view, as I have earlier recounted, that if time be an essential ingredient, then s 16(g) demanded that the application to amend should be refused.
21 Now, I am not be any means sure that this basic premise is entirely or universally correct. It may be that s 21 is sufficiently wide to allow, in some cases, amendment of a date even where time is of the essence of the offence. But it is not necessary for me to decide this and, as it was not argued before me, I expressly refrain from expressing any opinion in this regard.
22 I have come to the conclusion, however, that, on its proper construction, time is not an essential ingredient in a charge brought under s 21(1)(a) of the Road Transport (General) Act 1999. I shall now explain my reasons for this conclusion.
23 The notion "where time is of an essential ingredient" may arise in a number of different situations. There are two principal contexts in which it might properly arise. The first is where, upon its proper construction, the statute creating the offence itself makes time of the essence of the offence.
24 The learned authors of Halsbury's Laws of England (4th Edition) Vol II point out at footnote 4 of para 207 that: -
"Time is of the essence of the offence (1) when an act is criminal only if done within a certain time of some other act or event (eg persons in possession of firearms within five years from the date of release of certain sentences, contrary to the Firearms Act 1968 , s 21(2));
(2) When it is an essential ingredient of a particular offence that certain consequences should follow a particular act (eg in cases of homicide it is essential to prove that the death of the victim took place within a year and a day from the time when the act which caused death was done (in such a case the time stated in the indictment should be the day on which the act was done);
(3) When it is an essential ingredient of a particular offence that the act alleged was committed between certain hours of the day or night (eg night poaching or making signals to smuggling vessels); and
(4) When the prosecution for a particular offence must be commenced within a certain time of the commission of the criminal act alleged".
25 It will be recalled that it was the first two of these categories that enlivened the learned magistrate's interest and led her to the conclusion that time was of the essence of the present offence. Unfortunately, her Honour took the statement of these matters from an abbreviated reference to them in the judgment of Grove J in Rodney John Stringer [2000] 116 A Crim R 198 at 202. The reference to these four categories in Stringer did not include the examples given in the English text. The abbreviated form of the categories deprives the phrases of clarity and results in a certain degree of ambiguity. The examples I have mentioned make it clear, in my view, that, by way of contrast, the section under consideration in the present matter does not make the date an essential ingredient in the offence. Indeed, the section is quite indifferent to the date or time of the offence.
26 It is true, of course, that there is a temporal element in the central ingredient in the offence created by s 21(1)(a). For example, the responsible person must, when required to do so by an authorised officer immediately give information. The day itself, or the time of the day for that matter, when a request is made is of no material consequence to the establishment of the central ingredient. In that sense, the day when the request is made is not an essential ingredient.
27 A contrasting situation might be imagined where, for example, the liquor laws of the State prohibited the sale of liquor in a hotel public bar on Good Friday. An indictment for that charge would need to specify the particular day as an essential ingredient of the charge.
28 The second way in which time may be regarded as an essential ingredient in a offence is described by Gleeson CJ (with whom Handley JA and Studdert J agreed) in R v VHJ (NSWCCA 7 July 1996 unreported). At pages 13-14, Gleeson CJ said: -
"As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualification are of present relevance. First, in some circumstances, the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Second, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable."
29 Gleeson CJ made the point that there are many examples of cases in which it has been held that time has been made of the essence of the offence, or, to use another expression adopted by judges, has been made "vital" by reason of circumstances which give rise to qualifications of the kind he had mentioned in the passage set out above. Some of the cases mentioned by Gleeson CJ included The King v Dean (1932) NZLR 753, R v Kringle (1953) TAS SR 52; R v Pfitzner (1976) 15 SASR 171 and R v Westerman (1991) 55 A Crim R 353.
30 Generally, these cases involved offences of sexual interference of one kind or another. Although the dates contained in the indictments in each of these cases covered a reasonably broad spectrum of time, the evidence of the complainant often narrowed the date of the offence to one specific occasion. It was in this sense, as I understand it, that Gleeson CJ suggested that the particular date had been made 'vital" by force of the complainant's evidence so as to make it unfair for the Crown to depart from that date as the date of the alleged offence, notwithstanding the width of the time frame in the relevant indictment.
31 It is quite clear however that neither of the two qualifications expressed by Gleeson CJ in VHP have any applicability to the present offence. The date of the offence was never made "vital" in the outline of the Crown case, nor was it likely to be so when the evidence was given.
32 The position here is, as the plaintiff submitted, more akin to the situation described in The Queen v Pfitzner where at 185 Bray CJ said: -
"Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the event of a certain occasion, it may not matter if the date of that occasion is misstated if the occasion itself is clearly identified and both parties directed their cases towards it: see c/f Page v Butcher (1957) SASR 165. Obviously if a man is charged with committing an offence on Saturday and comes prepared with an alibi for Saturday, he cannot be convicted of committing the offence on Friday or Sunday, unless perhaps the information is amended and the trial adjourned to enable him to meet the new case."
33 This leads me to the third and final matter referred to by the learned magistrate. It was clearly a concern to her Honour that the brief of evidence submitted in the present matter suggested that two separate demands had been made of the defendant. Clearly this had the capacity to lead to some possible confusion on the part of the defendant as to which occasion was the one to be relied upon by the prosecution.
34 In argument before me, it was suggested that the defendant may have been in a state of misapprehension as to what was intended in this regard. Was it being required of him that he comply with the demand made on 30 December 2004? Was it being required of him that he comply with the demand later made on 21 February 2005? Which was the offence charged?
35 Whatever may have been the state of the defendant's mind on the morning of 30 November 2005, it is clear that the application made by the prosecutor was proffered not merely to correct an obvious error in the CAN but also to put beyond doubt that the date of the offence relied upon by the prosecution was in fact 21 February 2005. That having been clarified, it would have been open to the defendant, if any level of embarrassment or uncertainty remained, to seek an adjournment of the hearing once the date of the offence had been amended. The defence however, expressly disavowed any application for an adjournment.
36 In my view, the true situation which had developed by 30 November 2005 was simply this: the defendant, as he was entitled to do, was very well aware of the mistake in the Court Attendance Notice. Rather than draw this to the prosecution's intention at an earlier stage, a tactical decision was made to wait until the hearing by which time it would have been impossible to issue a fresh CAN for this offence. A further tactical decision was made to resist the application to amend on the basis argued before the learned magistrate. Indeed, the tactical decision paid dividends as the magistrate acceded to the defence arguments and refused to allow the amendment. I do not consider that the defendant would have been in any way taken by surprise to learn that the prosecution intended to rely upon the failure to comply with the demand made on the second occasion, namely 21 February 2005. It could not be said that an amendment to the initiating process would have carried with it any injustice or resulted in an "unfair trial" (see Borodin & Anor v R [2006] NSWCCA 83 at [20-24] per Howie J.
37 For the foregoing reasons, I conclude that the offence under s 21(1)(a) of the Road Transport (General) Act does not, upon its proper construction, require that the day or time of the day is to be regarded as an essential ingredient of the offence. Secondly, I conclude that it was open to the learn magistrate to permit the amendment of the CAN to insert, as the date of the offence, 21 February 2005. Thirdly, an amendment of that kind would not have required the issue of a fresh Court Attendance Notice as at November 2005 (Demetriou v Director of Public Prosecutions & Anor [2000] NSWSC 1060 per Studdert J at (19)).
38 The matter should be remitted to the Local Court to be dealt with in accordance with the conclusions and opinions I have stated in this decision. It will be a matter for the learned magistrate to determine whether the matter should proceed before her and when it should proceed. It will also be a question for the magistrate to determine whether any further adjournment is necessary to enable the defendant to prepare his case once the amendment has been granted, if that be the decision of the Court.
39 Accordingly I make the following orders: -