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[2001] TASSC 35
appellant. The conviction was quashed in its entirety and the complaint remitted for rehearing by a different magistrate. The judgment addressed the conviction; submissions concerning the sentence had not...
The original complaint accused the applicant of punching the complainant twice. The magistrate later added a separate allegation that the applicant jumped on the complainant's back and caused him to fall, without first checking whether the defence objected or would be disadvantaged. Crawford J held that this was new conduct, not simply a variation of the original charge, and that the defence should have had a reasonable opportunity to address it. The evidence also left serious doubt about whether the applicant was responsible for both assaults. The conviction was therefore quashed and the complaint sent back for a new hearing before a different magistrate.
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2,192 words · generated 30/09/2026
In R S C v Watt [2001] TASSC 35, Crawford J of the Supreme Court of Tasmania considered an application to review a conviction for common assault. The complaint originally alleged that the applicant unlawfully assaulted Ian James Roden “by punching him twice to the face” ([2]). The applicant had been sentenced to six months’ detention, but the submissions before Crawford J at this stage concerned the conviction, not the sentence ([1]).
No linked legislation citations have been extracted yet.
The prosecution case included two episodes of alleged violence. The complainant described being punched and later falling as he was chased across a car-park entrance. The identity of the puncher, the identity of the person who chased him, and the cause of his fall were disputed ([3]). The complainant’s evidence was that the applicant punched him, but Marcus Williams chased him and pushed him over ([8]). The applicant denied punching or pushing him. At trial, he said Williams punched the complainant and that the complainant later tripped while the applicant chased him ([18]–[19]).
A witness, Mrs Morcom, described the person chasing the complainant as jumping into the air and coming down on his back ([10]–[11]). Her description of that person as having “real blonde” or “very blonde” hair did not fit the applicant’s appearance in a police interview video recorded two days after the incident, in Crawford J’s assessment ([10], [33]). Scott Roden also described the person who chased the complainant as having blonde hair in a pony-tail, another description that suggested someone other than the applicant ([13], [35]).
When delivering reasons for finding the complaint proved, the magistrate amended it by adding the words “and by jumping on his back thereby causing him to fall to the ground” ([21]). The magistrate found the applicant guilty of both the punching and the added conduct. Crawford J concluded that the amendment should not have been made in that way, and that the conviction as a whole was unsafe. The Court quashed the conviction and remitted the complaint to be reheard by a different magistrate ([29], [39]).
The amendment issue turned on the difference between varying a charge to fit evidence already relating to the charged conduct, and adding another alleged act. Crawford J held that the allegation of jumping on the complainant’s back was not a mere “variation” within s 31 of the Justices Act 1959 (Tas). It was “additional conduct which was not originally charged” ([29]). The applicant should therefore have had a reasonable opportunity to consider and defend it.
The timing and manner of the amendment mattered. The magistrate amended the complaint while publishing reasons, without consulting either party ([2], [26]). No enquiry was made of the defence about whether it objected or whether the amendment would cause prejudice ([29]). Crawford J also considered the course of the cross-examination. When defence counsel questioned Mrs Morcom about the chase, the fall, and its cause, the magistrate questioned the relevance of that detail and suggested the central issue was identity. Although the cross-examination continued, the exchange created a risk that counsel was deterred from pursuing it as fully as might otherwise have occurred ([27]). Once the added allegation made the precise circumstances of the fall directly relevant, that risk reinforced the unfairness of making the amendment without notice.
The evidential concerns were separate but cumulative. The complainant’s account attributed the punching and the later chase and fall to different people. He said the applicant punched him and Williams chased and pushed him ([8]). The applicant also said different people were responsible, though he differed from the complainant about who did what ([18]–[19]). Crawford J considered there was substantial evidence against finding beyond reasonable doubt that the same person was responsible for both alleged assaults ([32]).
The identification evidence about the person who chased the complainant added to the doubt. Mrs Morcom’s and Scott Roden’s descriptions were inconsistent with the applicant’s appearance as Crawford J assessed it from the police interview video ([10], [13], [33], [35]). The magistrate had the advantage of seeing witnesses give evidence, which Crawford J expressly acknowledged ([36]). Nevertheless, the reviewing judge considered the identification evidence unreliable and dangerous to accept, noting also the complainant’s confusion about whether he knew the applicant before the incident and the questionable value of the dock identification ([36]).
The applicant’s credibility was also a concern. The magistrate treated a statement in the police interview, that the applicant had not seen anyone else assault the complainant, as a material prior inconsistency with the applicant’s evidence that Williams punched him ([21]–[22]). Crawford J did not find that taking account of the statement was itself an error: the full video was an exhibit and a transcript of the full interview had been supplied to assist the magistrate ([24]). However, Crawford J accepted counsel’s explanation that the applicant had not told police because he did not want to “dob in his mate”, and noted that the prior inconsistency was the only example the magistrate gave for rejecting the applicant’s credibility ([23], [38]). That increased the reviewing judge’s concern about the safety of the finding.
The judgment’s legal discussion is focused on s 31 of the Justices Act 1959 (Tas) and Canning v Taylor [1967] Tas SR 42. It does not attempt a broad account of the law of amendment or explain the full statutory text. Its contribution in this case is the distinction Crawford J drew between a mere variation and a new allegation of conduct.
The complaint before the magistrate alleged punching twice to the face. The amendment added that the applicant jumped on the complainant’s back and caused him to fall. Crawford J held that the added allegation was “not a mere ‘variation’” and described it instead as “additional conduct which was not originally charged” ([29]). The procedural consequence was that the applicant should have had a reasonable opportunity both to consider the further allegation and to defend it.
The magistrate had referred to Canning v Taylor as supporting amendment without prejudice. Crawford J did not accept that the case supported the amendment on the facts before him. He said there was no basis for concluding that the amendment could be made without prejudice, because the magistrate had made no enquiry of the defence ([29]). The judgment therefore applies the prejudice concern associated with Canning to the circumstances of a late amendment adding a separate act.
After this judgment, the point established by this decision is limited to its reasoning and context: where an amendment adds conduct not originally charged, the fairness of allowing it cannot be assumed merely because evidence about that conduct was heard. The court emphasised notice, a reasonable opportunity to consider and defend the allegation, and an enquiry into potential prejudice. The material provided does not establish a wider subsequent change in Tasmanian law or the later treatment of this decision by other courts.
At [29], Crawford J states that the evidence about the chase and the complainant being jumped on was “not a mere ‘variation’” under s 31. In plain English, the added allegation was not just a different description of the punching charge: it alleged a further act.
Also at [29], Crawford J says the defendant should have had “a reasonable opportunity to consider the further allegation and a reasonable opportunity to defend it.” This connects notice to practical fairness. It is not enough that evidence on the new issue happened to emerge during the hearing if the defence did not have a fair chance to respond to the allegation as a charge.
At [27], Crawford J identifies the possible effect of the magistrate’s comments during cross-examination. The danger, he says, was that counsel “may have been deterred” from pursuing the issue of what happened when the complainant fell. In plain English, a judge’s indication that evidence is peripheral can affect how the defence conducts its case. That concern became particularly relevant when the magistrate later treated the fall as part of the offence.
At [32], Crawford J says there was substantial evidence that should have prevented a finding beyond reasonable doubt that the same person committed both assaults. This does not mean the Court made a definitive finding about who committed either act. It means the evidence did not support the magistrate’s finding, to the criminal standard, that the applicant was responsible for both.
At [39], Crawford J explains why quashing only the finding about jumping would not resolve the case fairly. The magistrate had found the applicant committed both assaults, and the reviewing judge considered it inappropriate to leave the punching conviction in place in that setting. The result was to quash the conviction in its entirety and remit the complaint for rehearing by a different magistrate.
The decision is most relevant to a situation where a complaint or charge identifies one alleged act, but the court later adds another act that changes what the defendant must answer. Here, the original allegation was punching; the added allegation was jumping on the complainant’s back and causing him to fall ([2], [29]). The distinction is not simply whether the added detail appears in the evidence. The judgment focuses on whether it constitutes additional conduct rather than a variation of the allegation already charged.
The procedural setting also matters. The amendment was made only when the magistrate gave reasons, after the evidence and cross-examination were complete ([21], [26]). The defence had not been asked whether it objected or would be prejudiced. The decision therefore speaks particularly to late amendments made without consulting the defence, where the added allegation could have affected the questions asked, the evidence led, or the conduct of the defence ([27]–[29]).
A further relevant feature is where the trial court’s earlier comments may have shaped the defence response to evidence later treated as central. Crawford J noted that the magistrate had suggested the details of the chase and fall were peripheral, but the amendment made those details directly relevant ([27]). The case does not decide that every late amendment is necessarily impermissible. Its reasoning turns on the additional nature of the conduct, the absence of a prejudice enquiry, and the lost opportunity to consider and defend the allegation.
Finally, the judgment concerns the combined effect of a procedural irregularity and substantial evidential doubt. It does not stand only for a rule about amendments: the Court separately considered whether the conviction was unsafe because the evidence did not reasonably support the finding that the applicant committed both assaults ([31]–[39]).
The judgment supplied here identifies Canning v Taylor [1967] Tas SR 42 as the relevant earlier authority. Crawford J did not accept the magistrate’s use of Canning as justification for the amendment. He explained that there was no basis for finding the amendment could be made without prejudice because the magistrate had not asked the defendant’s counsel about that issue ([29]). He later described the failure to enquire about prejudice as contrary to the principles explained in Canning ([37]).
No later judgments or citations are included in the material provided. It is therefore not possible, from this source alone, to say whether later courts followed, distinguished, or limited R S C v Watt. A research account of subsequent treatment would require checking later case law beyond this judgment.
The judgment does not set out the full wording of s 31 or provide a general test for every amendment that may arise in magistrates’ proceedings. It decides that this added allegation was not a mere variation and that the applicant should have had a reasonable opportunity to meet it ([29]). The boundary between a permissible variation and additional conduct in other factual settings remains outside the decision’s express reasoning.
The judgment also does not specify what procedural step would always be sufficient once an amendment is proposed. It identifies the absence of consultation and a prejudice enquiry as defects in this case, and stresses the need for a reasonable opportunity to consider and defend the allegation ([29]). It does not prescribe a universal procedure or say whether an adjournment, further cross-examination, or another measure would have addressed prejudice in a different case.
There is also a distinct evidential question about the interaction between an amendment and proof of multiple alleged acts. The Court considered both the unfairness of adding the fall allegation and the difficulty of safely attributing both assaults to the applicant ([32]–[39]). It did not decide the applicant’s responsibility for either assault after the review; instead, it remitted the complaint for rehearing by a different magistrate ([39]).
Finally, the judgment records that the applicant had received a sentence of six months’ detention but says only conviction submissions had been addressed at this stage ([1]). It gives no separate analysis of the sentence or the consequence of the remitter for sentencing. That question cannot be answered from this judgment alone.
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CITATION: R S C v Watt [2001] TASSC 35
Magistrates - Jurisdiction and procedure generally - Procedure - Information and complaint - Other cases of amendment - Particulars amended by magistrate when publishing reasons for finding complaint proved - Charge of assault by punching - Amendment to also include assault by jumping on back - No enquiry as to prejudice - Whether a mere variation.
Justices Act 1959 (Tas), s31.
Canning v Taylor [1967] Tas SR 42, referred to.
Judgment ID Number: [2001] TASSC 35
1 The applicant seeks to review his conviction for assault and the consequent sentence of six months' detention. Only submissions concerning the conviction have been addressed to the Court at this stage.
2 The complaint charged him with "unlawfully assaulting Ian James Roden by punching him twice to the face". In the course of giving his reasons for finding the complaint proved, the learned magistrate, without consulting either party, ordered that the complaint be amended by adding "and by jumping on his back thereby causing him to fall to the ground". The making of that amendment is the subject of ground 5 of the motion to review. His Worship found all of what was contained in the amended complaint had been proved beyond reasonable doubt, that is to say that it had been proved that the applicant twice punched Ian Roden in the face and then jumped on his back, causing him to fall.
3 The evidence undoubtedly established the following basic facts. The complainant and Scott Roden, walked out of shop premises referred to as the "Online Centre" in the Eastside Village shopping centre at Ravenswood. They passed some shops heading out of the shopping centre towards the street. As they did so they also walked past a group of people that included the applicant, Marcus Williams and possibly one or two others. One of the persons in that group punched the complainant twice, his evidence being that he was punched in the back of the ear and then in the jaw. He started running across the entrance to the car park of the shopping centre towards the footpath of the street and was chased by one of the people in the group. He then fell heavily to the ground, with his face hitting the ground. The defence case was that he simply fell. The prosecution case was that he was pushed in the back and thereby caused to fall. He got up and went home. Major issues on the evidence included whether it was the applicant or Marcus Williams who punched the complainant, whether it was the applicant or Marcus Williams who chased the complainant and whether the complainant fell to the ground because he was pushed in the back by the person chasing him.
1 The learned magistrate erred in law and in fact in that on the whole of the evidence the conviction of the applicant was unsafe and unsatisfactory.
2 The learned magistrate erred in that he took into account parts of the applicant's record of interview with police that were not properly before the Court.
3 The learned magistrate erred in finding that the defendant was not a credible witness on the basis of a prior inconsistent statement upon which the defendant had not been cross-examined so as to be given an opportunity to make an explanation.
4 The learned magistrate erred in failing to take into account the evidence of the complainant that he had been assaulted by two different people.
5 The learned magistrate erred in amending the complaint without giving the applicant an opportunity to be heard.
To determine the grounds it is necessary to consider the evidence given by the witnesses and the course of the hearing.
5 The first witness to give evidence was the complainant. In a medical report tendered during the sentencing process, he was described as being mentally undeveloped, which probably explains why his evidence was at times confused and inconsistent. The learned magistrate may well have had a considerable advantage because he had the opportunity of observing the complainant, and the other witnesses, give their evidence, an advantage I have not enjoyed. The complainant said that as he and his cousin, Scott Roden, were walking past the pharmacy, "there was a bunch of fellas there and they said did I have a problem with him [sic]". He kept walking and "ignored him". After that "he pushed me, I pushed him back" and "I kept going and then he punched me in the back of the ear and then he hit me again ... with a fist in the jaw and broke my jaw". He bit his tongue and blood was coming out of his mouth. It is possible, I simply do not know, that when giving that evidence the complainant indicated the applicant whenever he referred to "he". He said that the person who pushed him was the same person as the one who punched him. I take that to be a reference to the push which started it all and not the push which ended it all. He started running and when he got to the vicinity of some bushes at the far side of the entrance to the car park, and next to the footpath of the street, he was pushed in the back by the person who was chasing him and "I went face first onto the footpath".
6 In examination-in-chief he was asked to "describe the person", a vague question. He named the applicant. There was confusing evidence from him concerning his identification of the applicant and whether he knew who the applicant was at the time of the assault. Part of the confusion arose because, as not uncommonly happens in my experience, the prosecutor took insufficient care with his tenses. The prosecutor asked the complainant whether "you have known" the applicant for some time, without directing the witness' attention to his state of knowledge at the time of the assault. The complainant said he had heard about the applicant and he had troubles with the applicant calling him names. He was then asked more directly, "had you known the defendant previously" and he initially responded with "no, I've heard about him, yes". Once again the prosecutor used the wrong tense, when he asked a leading question, "so he's been pointed out by other persons", to which he agreed. He then made a dock identification of the applicant as "the person who assaulted you", without objection from the applicant's counsel.
7 He was cross-examined about being chased and pushed in the back and falling over as a result. He agreed that he could not actually see the person who pushed him when he was pushed in the back. He was also cross-examined about his identification of the applicant. He agreed that before the incident he had heard about him, he had heard his name mentioned, but he had not met him or personally had anything to do with him. He was then asked: "You'd never had trouble with him before?" He replied: "Like just name calling and that but I ignored it." That possibly suggested some prior knowledge of the applicant's identity, but shortly after the complainant agreed that he had not had trouble with the applicant calling him names, but he had such trouble with "other boys".
8 The complainant gave evidence that Marcus Williams was present when he was assaulted. He said that it was the applicant who first pushed him and he pushed the applicant back, and it was the applicant who punched him. But he said it was Marcus Williams who chased him and pushed him over. He was adamant about that. He was certain that the one who had initially pushed and punched him was a different person than the one who chased him and he was certain that the applicant was the first one and Marcus Williams the second.
9 Cross-examining defence counsel then returned to the complainant's identification of the applicant as the first assailant. He was asked how he was able to say it was the applicant. He replied: "I knew him when he was - before he pushed me I knew it was him that done it." He agreed that when he spoke to the police on the day of the assault he had said that he did not know the names of his assailants, but asserted that he had only said so because he was scared of "the men". Later he said: "I knew the name of (the defendant), I didn't know what he looked like." Counsel questioned him further and he said:
"I didn't know what he looked like but then after - when I started having trouble with him I did know what he looked like, after he bashed, and this is before he bashed me. After we first had trouble with him that's when I know it was him that done it, I knew him. I was just confused that - after bashing that - I didn't - I was confused and I said that I didn't recognise - I didn't know the person who it was. Later on after I calmed down I knew it was him that done it."
He repeated that it was Marcus Williams who pushed him in the back but it was not Marcus Williams who punched him.
10 An independent witness was Mrs Heather Morcom, who lived across the street from where the incident occurred. Her evidence was that she was looking out her window when she saw the complainant "coming along rubbing his face and then he started to run. ... As he got near the edge of the road this other boy chasing him jumped up in the air and came down on his back and smashed him into the road". She was familiar with the complainant at the time. She described the person who jumped on the complainant's back as "a young fellow about 15, 16, with real blonde hair" adding that "his hair was very blonde". Having looked at the video recorded police interview with the applicant two days later, I conclude that it was unlikely that Mrs Morcom was referring to him, because in the course of that interview his hair was certainly not "real blonde" or "very blonde". When giving evidence, Mrs Morcom was asked whether she could see the person in court and she said "it looks like that boy there but his hair is a different colour". I do not know to whom she was referring, but suspect it was the applicant who presumably was in court at the time.
11 Mrs Morcom was adamant that the boy who chased the complainant jumped in the air and onto the complainant's back with his hands and smashed him into the road.
12 Scott Roden had been walking with the complainant from the Online Centre. His evidence was that they walked past a group of boys and "nothing happened", but he then added "oh they had a few words with us ... said some few things ... I can't remember the exact words". He said that there were "two boys plus him" which I take to have been a reference to the applicant and two others. He confirmed that there were three boys there. The following evidence in cross-examination occurred:
13 Scott Roden's evidence was that he and Ian Roden parted company near the supermarket, because they intended to proceed in different directions. He was asked whether he saw the complainant walk across the car park and he replied "yes at the start". He next saw the complainant starting to run and another boy was running right behind him and the next minute the complainant was on the ground. He did not see what caused the complainant to fall to the ground. He saw the complainant get up and run home. He gave no evidence that he saw anyone push or jump on the complainant's back. Nevertheless, the prosecutor was not deterred from asking a leading question: "Could you describe the person that jumped on Jamie that day?" Scott Roden replied: "He had blonde hair that day in a pony-tail." That did not fit the appearance of the applicant when interviewed two days later. His hair was not particularly blonde and it was certainly not in a pony-tail, being of a much shorter length than would have been required for one.
14 Concerning what happened after the complainant had been pushed to the ground, Scott Roden said: "Then the next minute Jamie was on the ground and his mate yelled out did he slip and he said no I right hooked him, didn't you see." Counsel for the respondent relied on that piece of evidence as constituting an admission by the applicant that he had punched the complainant. It must be commented, however, that the evidence threw more confusion into the case, because there was no suggestion that the complainant fell because he was punched, with a right hook or otherwise, and it would seem that the "mate" referred to by Scott Roden, was enquiring as to why the complainant had fallen over.
15 At the outset of the prosecution case there was tendered by consent the video recording of the police interview with the applicant. At the conclusion of the case for the prosecution the tape was played in court. It is easier to explain what occurred during the playing of that tape if I refer to the transcript of the interview which is eight and a half pages long. Because the applicant was 15 years of age, his uncle was present throughout the interview. For the first seven and a half pages, the uncle said almost nothing, but he then commenced to speak at some length. I will return to that in due course, but will first summarise what the applicant had said to the police up until then.
16 The applicant's version to the police was that the complainant had walked out of premises and he, the applicant, was standing on a corner when the complainant pushed past him for no apparent reason and swore at him, saying words to the effect of "fuck off". The complainant continued to walk through the car park and the applicant said that he ran up to the complainant and as he did so the complainant started running, but then tripped over a concrete gutter and landed face down on the ground. He then jumped up and took off, crying and screaming. The applicant said to the police officers that he did not hit the complainant at any time and did not push him over.
17 What I have just related was said before the uncle commenced to speak. He was in fact invited to do so by the interviewing officer, by being asked whether there was anything he would like to add. While the video was being watched before the learned magistrate, at the point where the uncle was talking, his Worship interrupted and put to the applicant's counsel that what was being said by the uncle was not relevant or admissible. She agreed and his Worship directed that the tape be stopped. As a result, referring to the transcript, the last half page was not played. It contained a question and answer upon which the learned magistrate placed much significance in his reasons for finding the complaint proved. The applicant was asked "did you see anybody else assault Mr Roden at all while you were there" and he replied "no". That was contrary to what he later said in evidence that Marcus Williams was the person who punched the complainant.
18 The applicant's evidence included the following:
"Mr Roden left the library and was walking towards me and Marcus and we were situated on the corner near the red fire hose thing. And Marcus punched Mr Roden and then he covered his ear and he made a funny noise, this is Mr Roden, and began to push past me to get away and walked across the car park. He got about halfway across the car park, and turned around and said, excuse me, it was something along the lines of, fuck you or fuck something or other. And then I started to chase him. I got within about three or four metres of him and he tripped over and hit his head extremely hard on the cement. And then I just stood there and he jumped up and was screaming up and ran up the road. I am not sure what the name of the road is towards his house."
19 The applicant's evidence was that he did not punch or hit the complainant at any time. He was not asked, either in examination-in-chief or cross-examination, why he had said to the police in the interview, in the passage which had not been played in court, that he had not seen anybody else assault the complainant, whereas in evidence he said that Marcus Williams had punched him. He was asked what he was going to do if he caught the complainant, when running after him, and he said that he was not sure. He did not know where Marcus Williams was at the time of the hearing or whether he still lived in Launceston. (Williams did not give evidence). He had chased the complainant because he assumed that the complainant was swearing at him, "because he was pointing at me". He denied having jumped on the complainant's back and denied punching him.
20 The cross-examination of the applicant was short, occupying about one and a half pages of transcript. When it concluded, the learned magistrate asked the applicant: "Did I understand you to say that you saw Williams assault this complainant?" The applicant replied: "Yes". It is likely that his Worship asked that question because he had been given a transcript of the police interview and had noticed the passage where the applicant said to the police that he had not seen anybody else assault the complainant, that is to say the passage on the tape which had not been played in court. However, the learned magistrate did not enquire of the reason for the prior inconsistent statement.
21 The learned magistrate reserved his decision and published his reasons for finding the complaint proved on 18 August 2000. His reasons were as follows:
"The defendant has pleaded not guilty to one count of common assault. That charge is proved. I shall set out briefly my reasons for arriving at that conclusion.
Of course the onus of proof is on the prosecution to establish the elements and particulars of the charge beyond reasonable doubt, and the prosecution has discharged that burden. The resolution of this charge depends upon the Court's assessment of the credibilities of the witnesses.
The charge reads as follows, that the defendant is charged with on 27 December 1999, at Launceston in Tasmania, unlawfully assaulting Ian James Roden by punching him twice to the face. However, certain facts were led without objection and which were cross-examined upon in detail and I observed further that the defence led evidence in an attempted refutation of those facts without any suggestion of prejudice. Those facts had not been the subject of formal pleading in the complaint and I shall return to that matter in a moment.
I approach the matter as follows. The defendant admitted that it was he who had followed the complainant across the car park. He denied causing the complainant to fall to the ground. However, I accept the prosecution evidence, which is substantial, that it was the defendant that caused that to occur.
Specifically I have the evidence of Mrs Morcom, an independent witness. The quality of her evidence impressed me. She was well situated to observe the relevant events. I am satisfied that she did observe the events to which she testified. Her evidence is corroborated by that of the complainant.
I turn my attention now to the alleged punching. I accept the complainant's evidence that he was struck by the defendant. The defendant was not a credible witness. One material example will suffice, a prior inconsistent statement. The defendant was asked during the police interview Did you see anyone else assault Mr Roden at all while you were there. His sworn testimony is to the opposite effect. As to all issues before me I reject the defendant's evidence where it conflicts with other testimony before me.
On the evidence the complainant's allegations are proved. In so finding I have regard to the totality of the evidence that has been adduced before me. Further and specifically I accept the evidence of Mr Scott Roden, which evidence includes testimony that the defendant said I right hooked him.
I return to the pleadings. In view of the matters to which I have already referred and as it is apparent that there is no issue as to this matter of pleading in accordance with the principles enunciated in the well-known case of Canning v Taylor, I amend the complaint as I am required to do in such circumstances. I amend the complaint by adding after the word face, the words and by jumping on his back thereby causing him to fall to the ground.
I am satisfied behind reasonable doubt of these matters and that complaint, as amended, is proved."
22 In his reasons, the learned magistrate said that the applicant was not a credible witness and he referred to "one material example" which he considered was sufficient to demonstrate that. The example arose out of the question and answer given by the applicant at the end of the video interview, when he said that he had not seen anybody else assault the complainant, whereas in his evidence he said that Marcus Williams had punched the complainant. In view of that unexplained and material difference between his versions, it is not surprising that the learned magistrate doubted his credibility.
23 However, counsel for the applicant explained to me, without opposition from the respondent's counsel, that prior to the hearing before the court below, where she was also his counsel, she was instructed by the applicant that he had seen Marcus Williams punch the complainant as he subsequently stated in his evidence, but he had not told the police of that because "he did not want to dob in his mate". Counsel said that if that question and answer in the video interview had been played before the learned magistrate, she would have called evidence from the applicant explaining the reason for the difference between his versions. Because that passage on the tape was not played in court, the learned magistrate having directed that the tape be stopped shortly before it, she did not ask the applicant to explain the difference. I accept what she said. I infer that she assumed that the learned magistrate would not have regard to that part of the tape which his Worship had stopped from being played.
24 Nevertheless, the video tape of the entire video was an exhibit, having been tendered by consent, and a transcript of the entire interview was provided to the learned magistrate, not as an exhibit, but to assist his Worship in his deliberations, and I am not satisfied that the taking into account of what was recorded on it as having been said by the applicant amounted to an error. For that reason ground 2 has not been made out. Nor am I satisfied that the learned magistrate erred when he applied the applicant's answer in circumstances where he had not been cross-examined concerning it. The answer was in evidence. The prosecutor was not obliged to cross-examine on it. The applicant's counsel was not obliged to ask the applicant about it either, when he was giving his evidence. It was a piece of evidence which was received before the applicant gave his evidence, and he had the opportunity to give evidence of his explanation for his conflicting versions. Ground 3 has not been made out either.
25 I will, however, return to this topic when considering whether the applicant's conviction was unsafe and unsatisfactory, which is raised by ground 1.
26 Without prior reference to the parties, the learned magistrate amended the complaint when publishing his reasons, by adding a further allegation that the applicant jumped on Ian Roden's back causing him to fall to the ground, an allegation which was found to have been proved. As a result, the applicant was sentenced for that assault as well as for the assault of punching the complainant twice to the face or head.
27 It was the applicant's evidence that although he chased the complainant, he did not jump on to his back and cause him to fall. When his counsel was cross-examining Mrs Morcom concerning the detail of what she saw of the chase, and of the complainant falling and the cause of him doing so, the learned magistrate interrupted counsel and questioned what the point of the cross-examination was, referring to it as going to peripheral detail, suggesting that it was unlikely to assist his Worship and expressing the view that the only issue was identity, thereby inferring that the detail of what happened while the complainant was being chased was immaterial. Counsel for the defendant said that there was an issue as to what happened when the complainant fell and as to whether he was pushed. Somewhat begrudgingly, I think, the learned magistrate allowed the cross-examination to continue commenting that "all this cross-examination about where precisely they were and what the distance was at particular times, I really don't think that is going to assist me". The danger to the defence arising out of that exchange was that counsel may have been deterred from pursuing that line of cross-examination, or from pursuing it more vigorously, and that danger is particularly apparent having regard to the amendment to the complaint which was subsequently made by his Worship without notice. By making the amendment evidence of the detail was undoubtedly made material and directly relevant and could not be categorised merely as peripheral detail.
28 On the hearing of the motion to review, counsel for the applicant, without objection from the respondent's counsel, said that if the learned magistrate had given the defence prior notice that the complaint would be amended in the way it was, the cross-examination of witnesses may well have been different, although she could not assert, having been made wiser after the event, whether the cross-examination would definitely have been different. She emphasised that when she was cross-examining the three prosecution witnesses, the only allegation charged in the complaint was that the applicant had punched the complainant and it was that allegation that she was primarily defending on his behalf, and not an allegation that he later chased and pushed the respondent over by jumping on his back.
29 The learned magistrate referred to Canning v Taylor [1967] Tas SR 42 as in some way supporting his decision to amend, but with respect I do not consider that it did. There was no basis for concluding, as the Full Court did in that case, that the amendment could be made without prejudice to the defendant. No enquiry was made of the defendant's counsel in that regard. Further, the evidence of the complainant being chased and jumped upon, so as to cause him to fall to the ground, was not a mere "variation" between the charge as alleged and the evidence in support of it within the meaning of s31, see Canning v Taylor at 46. It was evidence of additional conduct which was not originally charged and the defendant ought to have been given a reasonable opportunity to consider the further allegation and a reasonable opportunity to defend it. With respect I conclude that the amendment ought not to have been made to the complaint at such a late stage of the proceedings, and certainly not without first enquiring of the defendant's counsel whether she objected to it and whether prejudice would be caused to the defendant if the amendment was allowed. Ground 5 has been made out.
30 In the reasons of the learned magistrate it was not mentioned that the complainant's evidence was that he was assaulted by two different people. Counsel for the applicant submitted that the failure to mention it established that the learned magistrate erred by failing to have regard to the applicant's evidence and to take that fact into account. I do not accept the submission. The mere failure to mention it does not mean that regard was not had to it.
31 There are a number of reasons which collectively demand that the conviction of the applicant should be quashed. I will deal with them in no particular order.
32 The learned magistrate found that the applicant was the person who both punched the complainant and then chased and jumped on his back, thereby causing him to fall. There was a substantial body of evidence which ought to have persuaded his Worship that it was not open to conclude beyond reasonable doubt that the same person was responsible. The complainant's evidence was clear that different people were involved and that while the applicant punched him it was Marcus Williams who chased and jumped on him. The applicant's evidence was also to the effect that different people were responsible, although of course, his evidence did not accord with that of the complainant as to which of the two people, he and Marcus Williams, were responsible for the respective attacks.
33 The descriptions given by Scott Roden and Mrs Morcom of the person who chased the complainant, tended to suggest that it was not the applicant. The learned magistrate said that the prosecution evidence that it was the applicant was substantial. His Worship relied particularly on the evidence of Mrs Morcom, but her description of the assailant as being "real blonde" and "very blonde" did not support a conclusion that it was the applicant, having regard to his appearance in the video recorded interview only two days later. In evidence she said that the applicant looked like the person but his hair was a different colour, which raised further doubt about the matter.
34 The learned magistrate also referred to the evidence of the complainant, which his Worship said corroborated Mrs Morcom's evidence. They corroborated what each other said that the person who chased the complainant also pushed him over, but they also corroborated each other that, on the basis of their descriptions or references to that assailant, it was unlikely to be the applicant.
35 The learned magistrate relied specifically on the evidence of Scott Roden, "that the defendant said 'I right hooked him'". There are two matters arising out of that reliance which call for comment. The first is that Scott Roden's evidence of what was said was inconsistent with the events which the prosecution alleged took place. His evidence was that the question asked of the person who the learned magistrate concluded was the applicant, was whether the complainant had slipped, and the response was "no I right hooked him", which was not what was described by the complainant and Mrs Morcom as having happened. The second is that Scott Roden's description of the person who made that statement as having blonde hair in a pony-tail, suggests someone other than the applicant.
36 It must be acknowledged that the learned magistrate had a considerable advantage, which I have not enjoyed, in being able to observe the witnesses as they gave their evidence. He was in a much better position to understand what the witnesses meant by evidence which I may have found unclear on a mere reading of the transcript. Nevertheless, I have real concerns that evidence identifying the applicant as the assailant was unreliable and dangerous to accept. The complainant's evidence seems to me to have been confused concerning whether he was familiar with the applicant and knew who he was at the time of the assault. He was permitted to make a "dock identification" of the applicant which was of questionable value. On the other hand, he gave firm evidence that it was Marcus Williams who chased and pushed him in the back, a fact which the learned magistrate did not accept but found to be wrong beyond a reasonable doubt.
37 The extremely late amendment of the complaint, to include an allegation that the applicant jumped on the complainant's back and caused him to fall, which was made without consulting the parties and in particular, without enquiry of the applicant's counsel as to whether prejudice might be suffered, should not have occurred and the applicant should not have been found guilty and convicted upon the basis that he jumped on the applicant's back. The failure to enquire about prejudice was contrary to the principles explained in Canning v Taylor [1967] Tas SR 42.
38 Accepting, as I do, the explanation given by the applicant's counsel for not calling evidence from him explaining his prior inconsistent statement that he had not seen anyone else assault Mr Roden, increases my concern that the finding that the complaint was proved was unsafe. The prior inconsistent statement was the only example given by his Worship when expressing his finding that the applicant was not a credible witness.
39 Concerning the disposition of the motion to review, it is plain that in so far as the applicant was convicted of jumping on the complainant's back and causing him to fall is concerned, it should be quashed, having regard to the success of ground 5. His conviction upon the basis that he also punched the complainant must also be quashed. It was not reasonably open on the evidence for his Worship to conclude beyond reasonable doubt that the applicant was responsible for both assaults, and having regard to the finding that the applicant committed the second assault, it is inappropriate to allow the conviction to remain upon the basis that it was the applicant who committed the first assault. In my view, the only just way in which this case can be resolved is by quashing the conviction in its entirety and remitting the complaint to be reheard by a different magistrate.
R S C
Watt [2001] TASSC 35
The conviction was quashed in its entirety and the complaint remitted for rehearing by a different magistrate. The judgment addressed the conviction; submissions concerning the sentence had not been addressed at this stage ([1], [39]).