Fisheries Management Act 1991 (Cth), s95.

Crimes Act 1914 (Cth), s7(1).

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, referred to.

Fred Wakefield Pty Ltd v Dowd (1979) 20 SASR 328; Gilmour v Midways Springwood Pty Ltd [1980] FCA 142; (1980) 33 ALR 605, followed.

Judgment ID Number: [1999] TASSC 1

1 The applicant seeks a review of an order made in a court of petty sessions amending a complaint made against him by the respondent.

2 On 24 January 1997, the respondent made the following complaint to a justice:

Charge: Attempt to contravene a condition of a fishing condition

Breach of: Section 95, Fisheries Management Act 1991 and Section 7, Crimes Act 1914

Particulars: THAT CHRISTOPHER JOHN OLVER did attempt to commit an offence against a law of the Commonwealth namely, contravene a condition of a fishing concession in that on and [sic] about 3 March 1996, being the holder of a fishing concession namely Fishing Permit number 1042, he did attempt to carry King Crabs taken with the use of traps or pots in excess of the number of traps or pots he was permitted to use under the Tasmanian State Law in accordance with the terms of the said concession."

3 By virtue of the order that is the subject of this motion to review, the complaint was amended as follows:

Charge: Attempt to contravene a condition of a fishing condition

Breach of: Section 95, Fisheries Management Act 1991 and Section 7, Crimes Act 1914

Particulars: THAT CHRISTOPHER JOHN OLVER did attempt to commit an offence against a law of the Commonwealth namely, contravene a condition of a fishing concession in that on and [sic] about 3 9 March 1996, being a person acting on behalf of Redkit Pty Ltd the holder of a fishing concession namely Fishing Permit number 1042, he did attempt to carry King Crabs taken with the use of traps or pots in excess of the number of traps or pots he Redkit Pty Ltd was permitted to use under the Tasmanian State Law in accordance with the terms of the said concession and the complainant avers that:

1 Between 11.05am and 11.55am on 9 March 1996 the defendant was on board the vessel Kai Koura

2 Between 11.05am and 11.55am on 9 March 1996 the vessel Kai Koura was approximately located at a position of latitude 410 09' 75" and longitude 1440 06' 02"."

4 The authority to make the order is the Crimes Act 1914 (Cth), s15C(1) which confers a power to amend (inter alia) a complaint "as appears ... to be desirable or to be necessary to enable the real question in dispute to be determined." The wide discretion conferred by subs(1) is fettered in the following terms by subs(3) which provides:

"(3) The power of the court under subsection (1) shall not be exercised in cases where the court considers that the required amendments cannot be made without injustice to the defendant."

5 The Fisheries Management Act 1991 (Cth) ("the Act"), s95(1) prohibits divers conduct in the following terms:

(a) at a place in the AFZ, engage in commercial fishing unless:

(i) the person is, or is acting on behalf of, the holder of a fishing concession, or a scientific permit, that is in force authorising commercial fishing at that place; or

(ii) if a Treaty boat is used - a Treaty licence is in force in respect of the boat authorising commercial fishing at that place; or

(b) in the AFZ, be in charge of a Treaty boat that is being used for commercial fishing unless a Treaty licence is in force in respect of the boat; or

(c) in the AFZ, have a fish in the person's possession or under his or her control in a boat at a time when the taking of the fish was not authorised by a fishing concession or a scientific permit; or

(d) being the holder of a fishing concession, scientific permit or foreign master fishing licence that is in force, contravene a condition of the fishing concession, permit or licence or a provision of a temporary order; or

(e) being the holder of a fishing concession or scientific permit that is in force, cause or permit a person acting on his or her behalf to contravene a condition of the fishing concession or scientific permit or a provision of a temporary order, as the case may be; or

(f) being a person acting on behalf of the holder of a fishing concession or scientific permit that is in force, contravene a condition of the fishing concession or scientific permit or a provision of a temporary order, as the case may be."

6 It may be noted that par(d) proscribes conduct by (inter alia) "the holder of a fishing concession" and par(f) proscribes the same conduct by (inter alia) "a person acting on behalf of the holder of a fishing concession". The Act, s95(2) creates the offence of contravention of s95(1)(a) or (b) with, or in relation to, a foreign boat, and subs(5) creates the offence of contravention of s95(1)(a) - (f) not with, or in relation to a foreign boat. The Crimes Act, s7(1) makes any attempt to commit an offence against any law of the Commonwealth an offence "punishable as if the attempted offence had been committed."

7 It seems to me that the complaint pleads a breach of the Crimes Act, s7(1) and not a breach of the Act, s95(5). The latter offence is only complete when the conduct proscribed by s95(1) has been committed. The Crimes Act, s7(1) creates the separate offence of attempting to commit "any offence against any law of the Commonwealth". It follows that the time for the commencement of a prosecution with respect to events that took place on 9 March 1996 expired on 9 March 1997 as provided by the Crimes Act, s15B and not 9 March 1998, as provided by the Act, s95(7). This subsection enacts that a prosecution for an offence against subs(2) or (5) may be commenced within two years after the commission of the offence. If the offence charged by the complaint is a breach of the Crimes Act, s7(1) and not a breach of the Act, s95(5), it follows that the former Act, s15B(3) has no operation.

8 However, this question was not the subject of any submissions from counsel, it being assumed that the relevant time limit for the commencement of any prosecution was fixed by the Act, s95(7), so I express no concluded view about it. In any event, whether the time is fixed by the Crimes Act, s15B or the Act, s95(7), there is no doubt that time had expired at the date the application for amendment was made.

9 Central to the arguments advanced in support of the motion to review was the proposition that the proposed amendment created a new offence and thus the order for amendment created an injustice to the applicant within the meaning of the Crimes Act, s15C(3). This central proposition is reflected in the grounds for review which, as amended, provide:

"1 The learned Magistrate erred in law in concluding that in pith and substance, the amended complaint was the same as the complaint originally filed when it was not, in that;

(a) it alleged the Appellant was the agent of and not the permit holder;

(b) it alleged the offence occurred on 9th March 1996 and not 3rd March 1996 as originally alleged;

(c) it alleged Redkit Pty Ltd was the holder of a fishing concession when it had not previously;

(d) it alleged the Appellant was an [sic] board the vessel Kai Koura, when it had not previously, which amendment by virtue of Section 166 of the said Act, became a prima facie fact when it was not previously;

(e) it alleged the said vessel was at a particular latitude and longitude when previously it had not, which amendment by virtue of Section 166 of the said Act, became a prima facie fact when it was not previously;

1A The learned magistrate erred in law in amending the complaint in that the amendment sought to allege an offence different to that alleged in the original complaint and when the time limited for the commencement of the prosecution for the new offence had expired.

2 The learned magistrate erred in law when, having found that the proposed amendment was outside the time specified by s95(7) of the Fisheries Management Act 1991 (C'th), in concluding that there was no prejudice to the applicant, when the effect of the amendment was to create an injustice within the meaning of the Crimes Act 1914, s15C(3)."

10 The applicant did not contend that he had otherwise suffered any prejudice by the making of the impugned order. It appears that the complaint was first mentioned in a court of petty sessions on 5 March 1997 and a month later the solicitors for the applicant were given notice of the application to amend. Those solicitors advised that there would be no objection to the proposed amendments. More than a year elapsed before the matter was called on for hearing and the then opposed application for amendment was made. I do not know why there was such a long delay. Long delays between the institution of proceedings and their disposition are inimical to the provision of justice and should be eliminated. I cannot help but add that it is my experience that long delays between the institution of proceedings and their disposition all too frequently attend prosecutions for breaches of a Commonwealth law.

11 On behalf of the applicant, Mr Porter QC submitted that the order of amendment:

* altered the date from 3 March 1996 to 9 March 1996;

* changed the status of the applicant from being the holder of a permit to being a person acting on behalf of the holder of a permit; and

12 There is no doubt that the foregoing is correct, but with respect to it, the following may be observed:

* The date has only been altered in the clause headed "Particulars". Under the heading "Date of Offence" the original and the amended complaint set out "9 March 1996". The date, 3 March 1996 in the particulars of the original complaint, constituted an internal inconsistency which was eliminated by the amendments to those particulars.

* Under both the original and the amended complaint, the pleaded conduct was alleged to have been a breach of the Crimes Act, s7(1) and the Act, s95.

* The averments, permitted by the Act, s166(1), are not elements in the offence charged and their inclusion in the complaint did not cause the applicant any prejudice.

13 Accordingly, it seems to me that the essential issue on the motion to review is whether the amendment to plead conduct proscribed by the Act, s95(1)(f) in lieu of conduct proscribed by the Act, s95(1)(d) had the effect of charging a new offence and, if yes, does the order of amendment thereby cause an injustice to the applicant?

14 The law reports are replete with cases dealing with this issue. Fundamental to it, as was submitted by Mrs Read on behalf of the respondent, 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] 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) 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.

18 In the Federal Court, Brennan J (as he then was) took what might be described as a stricter approach in Gilmour v Midways Springwood Pty Ltd [1980] FCA 142; (1980) 33 ALR 605, a case heavily relied upon by Mr Porter QC. This case concerned prosecutions for breaches of the Trade Practices Act 1974 (Cth), s53. His Honour said this at 607:

"The offences created by s 53 of the Trade Practices Act have a number of elements. Each combination of elements together constitutes an offence different from the others created by the same section. That is not to say that the facts which would support a conviction for one offence under s 53 might not at the same time support a conviction for another of the offences created by the same section. However, the question now relevant is not related to the evidence necessary to support a charge, but to the identity of the particular offences charged.

For present purposes, it is necessary to determine whether conduct of a kind specified in one of the lettered paragraphs of s 53, when combined with the several alternatives in the introductory part of that section, constitutes differing offences. In my opinion, it does. It is an offence for a corporation in trade or commerce 'in connexion with the supply of goods or services' to do any of the acts specified in the lettered paragraphs of the section. It is another offence for a corporation in trade or commerce 'in connexion with the promotion by any means of the supply of goods or services' to do the same acts. It is immaterial that the same body of evidence might support a conviction for either offence. A sufficiency of evidence to support a conviction for either offence does not establish the identity of the two offences."

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, and Mr Porter submitted, 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.

20 The Act, s95(5) creates numerous offences by enacting that it is an offence to do any act proscribed by s95(1). The elements that go to make up each of those offences are different. In some instances the differences are quite marked. Paragraph (d) proscribes conduct by a holder of a fishing concession, by a holder of a scientific permit or by the holder of a foreign master fishing licence. Paragraph (e) proscribes conduct by the holder of a fishing concession or by the holder of a scientific permit only and par(f) proscribes conduct by a person acting on behalf of the holder of a fishing concession or a person acting on behalf of the holder of a scientific permit. Thus, the legal elements that go to make up the offence charged by the complaint laid are different in one significant respect from the elements that go to make up the offence charged by the amended complaint. Application of the principles expressed by Brennan J in Gilmour (supra) would require the application for an amendment to be refused. 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.

21 In my opinion, the learned magistrate fell into error when he said in his reasons for making the impugned order:

"When one looks closely at the authorities and most of them are from South Australia, I think that the pith and substance test here ought to cover the amendment which is now sought to be made. That it is only a variation - it is not a totally different offence - it is an offence under the same section - merely conceding [sic] that he was not the holder, he was the agent of the holder. I don't see that to be a marked - such marked significance as to suggest a different test."

22 Although the offence charged by the amended complaint is related to that charged by the original complaint, it is, in my opinion, quite different. It is different in the sense that it arises out of a different statutory provision and comprises different legal elements. Permitting the amendment deprived the applicant of an immunity given by a statutory period of limitation and in the proper exercise of the magistrate's discretion should have been refused.

23 The motion to review succeeds. The order of amendment is quashed. In lieu thereof it is ordered that the application to amend the complaint is refused. I will hear counsel further before either dismissing the complaint or remitting it to another magistrate for hearing in accordance with the law.