Malahoff v White [1991] TASSC 60

3 On 18 March 1991 in the Court of Petty Sessions at Launceston, the complaint came on for hearing. The prosecutor sought and obtained leave to amend the complaint 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. The complaint was then adjourned until June 1991.

4 Section 37(1) of the Traffic Act 1925 provides that no person shall drive a motor vehicle in a public street while he is disqualified under "this or any other Act" for holding or obtaining a driver's licence. Subsection (2) thereof however provides:

"This section does not apply in respect of a disqualification for holding or obtaining a licence imposed under the Road Safety (Alcohol and Drugs) Act 1970 ...".

"A person who, except in so far as he is authorized to do so by a licence issued pursuant to an order made under s36 of the Traffic Act 1925, drives a motor vehicle while he is disqualified under this Act from holding or obtaining a licence is guilty of an offence."

Thus if the evidence tendered on the hearing were to establish that the defendant drove a motor vehicle on a public street while he was disqualified under the Road Safety (Alcohol and Drugs) Act 1970 he could not be convicted of the offence originally charged.

5 Section 31 of the Justices Act 1959 (the Act) provides:

"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

(c) 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.

(4) ...

(5) ...

(6) ...

(7) ...".

6 It is implicit in the submissions of the prosecutor that he was anticipating a variance in that his evidence would not prove disqualification under the Traffic Act but rather under the Road Safety (Alcohol and Drugs) Act. A variance of this kind is capable of making the complaint "otherwise defective" within the meaning of s31(3)(a) of the Act (Canning v Taylor [1967] Tas SR 42 per Burbury CJ at p49; Gibson J at p50 expressing his agreement with the reasons for judgment prepared by Burbury CJ with qualifications not here relevant; Crawford J at p58).

7 In Wickham v Cole [1957] Tas SR 111 Burbury CJ at pp 115-116 said of the amendments enacting the forerunner to s31 of the Act:

"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."

8 In Breen v Gibson Serial No 59/1979, Neasey J upheld the power of the Magistrate to amend the complaint by altering the charge from one of 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 different one of refusing to submit to a breath analysis test, contrary to s14(2) of that Act. Throughout the case both parties had fought the issue as if the latter charge had been laid and the point that the wrong section had been mentioned in the complaint was only raised on the initiative of the Magistrate. His Honour said at p3:

"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 is that it should be."

9 In the present case the prosecutor said to the learned Magistrate, without objection from the appellant's counsel, that it was the defendant who had advised the prosecutor several days before the hearing that the charge had been laid under the wrong Act. He submitted that there was no prejudice to the defendant because the complaint was the same, that is, it was the same act of driving and the same disqualification save in so far as it was imposed in consequence of earlier conviction under one Act rather than the other and driving was thus prohibited by the one rather than the other. At the hearing of the appeal no other prejudice was urged save that slightly different penalty sections applied depending upon which Act was appropriate.

10 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] 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."

11 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.

12 In my opinion the offence charged in the amended complaint was of the same pith and substance as that in the original complaint. The actus reus was the same act of driving on the same occasion, coupled with the fact of disqualification, pursuant to court order. The fact that that disqualification was imposed under different Acts or that the offence might attract different sanctions, did not in my view effect any change in the quality or effect of the essential elements of the charge.

13 The appellant also argued that as no evidence had been tendered, it could not appear that the complaint was defective by reason of variance between it and the evidence in support of it. However, the comments of Burbury CJ in Wickham v Cole cited above (at p118) contemplate such a situation and in Schultz v Pettitt Cox J held at p433 that "it is open to the court to anticipate a variance before any evidence is taken and to amend accordingly."

14 The final submission is that as more than six months had elapsed since the alleged date of the commission of the offence (30 October 1989) and the date of the amendment (18 March 1991) it was not competent for the learned Magistrate to amend so as to allow the charging of an offence under another Act. Clearly, a fresh complaint would have been out of time (s26 of the Act).

15 In Tregilgas v Howie [1926] SASR 122, Murray CJ held that a complaint which did not disclose an offence could not be amended outside the limitation period so as to charge an offence. He distinguished the position where a complaint, valid on its face, had been amended to allege a date of commission outside the limitation period of six months at the time of amendment, but still within the period of six months preceding the date of the original complaint (R v Wakeley [1920] 1 KB 688). In Schultz v Pettitt (supra) Cox J allowed the amendment to the date in circumstances similar to R v Wakeley but in the passage I have cited (at p433) emphasised that amendment could not be permitted so as to "convert a bad complaint into a good one". Similarly, 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."

16 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.

In this particular case the facts of the alleged offence were set out in a notice of facts served with summons charging the original offence of permitting the unlawful user. The prosecution sought in no material way to depart from those facts. They merely realised, having failed to heed the advice which this court gave in Ross Hillman Ltd v Bond [1974] 2 All ER 287, [1974] QB 435, that whereas those facts substantiated the offence of actual unlawful user, they might not prove the type of offence originally charged. In those circumstances I think that the justices were entitled, within the exercise of their discretion, to allow the amendment sought, as they did, and that accordingly they were entitled to continue thereafter to hear and determine the amended information against the applicants."

17 In the present case no basis for asserting injustice or prejudice to the appellant exists. In my view the learned Magistrate was right to make the amendments. The appeal will be dismissed.