Wade v Evans [2003] ACTSC 85

3. The appellant was proceeded against by summons for three offences -

1. That he in the Australian Capital Territory on 18 July 2002, a repeat offender, did drive while his licence was cancelled, contrary to s 32(3)(a) of the ACT Road Transport (Driver Licensing) Act 1999. (Case No CC2002/6694)

2. That he in the Australian Capital Territory on 18 July 2002 on a road, did use an unregistered registerable [sic] vehicle, contrary to s 18(1) of the ACT Road Transport (Vehicle Registration) Act 1999. (Case No CC2002/6695)

3. That he, in the Australian Capital Territory, on 18 July 2002, did use an uninsured motor vehicle, contrary to s 162(1) of the ACT Road Transport (General) Act 1999. (Case No CC2002/6696)

4. At the close of the prosecution case before the learned Special Magistrate the defence raised an objection that the charge of driving whilst cancelled was not made out, as on the evidence, the appellant's licence had not been cancelled but rather he had had his licence disqualified. The prosecution conceded that, on the basis of the evidence before the Court, the charge of drive while cancelled was the incorrect charge, and the prosecution sought leave to amend the first charge to a charge under s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 that he did on the same date and place drive a motor vehicle during a period of disqualification.

5. The appellant argues that the Magistrate was in error in accepting such an amendment to the charge and proceeding to a conviction on the charge.

Power of the Magistrates Court to amend a charge

6. There is a statutory power in the Magistrates Court Act 1930 (the Magistrates Court Act) to amend a charge. Section 28 of the Act provides:

28. Power of court to amend information

(1) If at the hearing of any information or summons any objection is taken to an alleged defect therein in substance or form or if objection is taken to any variance between the information or summons and the evidence adduced at the hearing thereof, the court may make such amendment in the information or summons as appears to it to be desirable or to be necessary to enable the real question in dispute to be determined.

(2) The court shall not make any such amendment where it considers that the amendment cannot be made without injustice to the defendant.

7. The respondent conceded that the appellant was before the Court on the wrong charge. The evidence before the Magistrate was that the appellant was the subject of two periods of licence disqualification and that these were set out in Exhibit C before her. These facts are not in dispute.

8. The power to amend a charge contained in s 28 of the Magistrates Court Act is similar to that contained in many other jurisdictions. In Schultz v Pettitt (1980) 25 SASR 427, Cox J said (at 433) that a complaint may not be amended under the relevant equivalent South Australian provision "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".

9. In Surman (1996) 85 A Crim R 361, Bollen J in the South Australian Supreme Court considered the validity of a magistrate's decision to amend a charge at a hearing from attempting to put a motor vehicle in motion while having the prescribed concentration of alcohol in his blood to driving with the prescribed concentration. His Honour (at 363) referred with approval to the commentary in volume 2 of Criminal Law South Australia by Lunn J which says of the South Australian section which permits amendment, a section in similar form to s 28 of the Magistrates Court Act, that -

An amendment may not be made under s 181 which would convert a bad complaint into a good one or charge the defendant with a different offence... An amendment does not create a different offence where it only differently describes an offence if the pith and substance of the charge remain the same ....

10. Bollen J summarised the law concisely, it seems to me, by stating at 364 -

You may not amend to charge a different offence. You may not amend if the pith or substance of the two offences is different the one from the other.

11. It is clearly the case that the offence with which the appellant was convicted is different from the offence with which he was charged. He was charged with an offence under s 32(3)(a) of the Road Transport (Driver Licensing) Act 1999 of driving when his license was cancelled, and after the charge was amended he was convicted of an offence under s 32(1)(a) of driving during a period of disqualification. In D'Ambrosio v Fearnside [2002] ACTSC 126, Crispin J said at [12] -

Section 32 of that Act creates a series of separate offences, with that created by subs (1) relating to driving whilst disqualified from holding a licence, that created by subs (2) relating to driving whilst licence is suspended and that created by subs (3) relating to driving after a licence has been cancelled.

12. His Honour's decision in D'Ambrosio was drawn to the learned Special Magistrate's attention in written submissions for the appellant. In written submissions reproduced in the Appeal Book Mr Bevan, for the appellant, said -

... s 28 has no application as the amendment sought by the prosecution is not an amendment arising from any defect in substance or form and there is no variance between the information and the evidence before the Court. The prosecution is not seeking amendment of the information but its substitution. If the prosecution request was granted then the defendant would be defending the separate offence of "drive while disqualified" in lieu of the original allegation of "drive while cancelled".

13. Mr Bevan referred to Victorian and New South Wales authorities to the same effect as Surman that the equivalent provisions in those States permit an amendment where there is a defect in the charge, but not where the charge alleges a different offence to that established by the evidence (Flanagan v Remick [2001] VSC 507; (2001) 35 MVR 289, Ex parte Findlay; Re James (1953) 70 WN (NSW) 115, Ex parte Thomas; Re Olzen (1947) 64 WN (NSW) 21).

14. In response, counsel for the respondent submitted that the amendment "did not change the factual matrix, rather it changed the legal matrix as to how the offence was generated. Both the original charge and amended charge allege that the appellant was driving. The amendment simply corrected the legal basis as to why the appellant was committing an offence by driving.

15. It seems to me that this submission overlooks the importance to the criminal justice system of requiring the prosecution to prove the particular charge against a defendant. An accused person is entitled to prepare for a trial on the basis of the offence with which he is charged, and to allow the prosecution to charge a different offence at the close of the prosecution case, when it becomes apparent that the offence with which he has been charged cannot be made out, carries the real risk of injustice. The legislature has provided a power is s 28 of the Magistrates Court Act to amend the information if there is a variance between the information and the evidence adduced at the hearing but, it seems to me, there is clear authority for the proposition that this does not permit the laying of a different charge.

16. In Felix v Smerdon (1944) 18 ALJR 30, the High Court held that a magistrate was in error in permitting a variance to a charge, with Latham CJ saying at 30 -

A variance exists where an offence which is charged is established with some variation or difference in detail; but where the offence is really a different offence, then the term "variance" is not applicable, and more particularly in a case where the commission of an offence depends upon an act or omission at or during a particular time.

17. In the Australian Law Journal report of the case, which is in the shorter form of reporting used at the time, Justice Starke is reported to have said (at 31) -

... that the provisions of s 65 of the Justices Act could not be relied on in this case because the offence proved was not the offence charged. Time and place are not in all cases necessary or material averments, but there was no defect in substance in the case, for the offence proved was different from the offence charged and there was no variance for the same reason.

18. It seems to me that when the defect in the charge became apparent the appellant was entitled to draw this to the attention of the Magistrate, and that on the authorities the Magistrate should not have permitted the amendment of the charge to a different offence. The Magistrate's attention was drawn to the decision of Crispin J in D'Ambrosio, and that was authority binding on her that the offences are different offences. The test suggested by the respondent, that an amendment can occur which changes the "legal matrix" is not a test recognised by authority, and it seems to me that the Magistrate accordingly erred in permitting as a variance the substitution of a new charge. The appeal against conviction must on this aspect be upheld. The proper course at the time would have been to have dismissed the incorrect charge, and to have allowed the prosecution, if it wished, to begin afresh with a charge on the appropriate offence. Due to the expiration of a statutory limitation period, this is no longer possible, but this should not be a reason for permitting a variation to an information that goes beyond what has been recognised as the appropriate limits of the power to amend.

19. The appellant argues that each conviction should be set aside on the grounds that the Magistrate erred in the way she dealt with the identification evidence.

20. The evidence for the prosecution in relation to identification was the evidence of the officers who were conducting the random breath testing, being Detective Senior Constable Evans and Sergeant Isselmann. They said that they stopped a white Holden Commodore sedan, registration No VNZ 422 in Hibberson Street, Gungahlin. The driver produced an expired New South Wales photographic driver's licence in the name of the appellant. This photographic licence was tendered before the Magistrate. Both police officers say that they identified the appellant as the person whose photograph was on the driver's licence.

21. The police, on learning that the vehicle was uninsured and unregistered, directed the driver to leave the vehicle, and he was allowed to leave on foot. Detective Senior Constable Evans told the Court that the driver, who he identified as the appellant, acknowledged that he was not licensed to drive, and said that he was driving the vehicle for his girlfriend - that he was doing it for love. The driver, who the appellant says was not him, was asked for a current address, and provided the address of 3 Buller Crescent Palmerston, which the appellant acknowledges is the address of his girlfriend, and was the address to which the summons was served in this matter.

22. The Magistrate relied on the identification evidence of the police, together with the address provided by the driver, to be satisfied beyond reasonable doubt that the appellant was the driver. The appellant gave evidence that he was not driving a vehicle that night, and this was supported by his girlfriend. The Magistrate rejected this evidence.

23. The appellant argues that the identification evidence was unreliable and should not have been accepted. The respondent argues that the identification by both police officers was admissible pursuant to s 114 of the Evidence Act 1971 as at the time of the identification when the decision was made to proceed against the driver by way of summons, it was not reasonably practicable to conduct an identification parade. It seems to me that there is much force in this submission, and there is abundant authority of this Court (R v Thomason [1999] ACTSC 112; (1999) 139 ACTR 21, R v Reed & Carberry [2003] ACTSC 6) to support it.

24. The circumstances of this arrest were reasonably commonplace. The police stopped a vehicle at an RBT, and detected a driver who did not hold a current licence. He produced a photographic driver's licence, and both police officers say they were satisfied that it bore a sufficient resemblance to the driver to satisfy them that this was the correct identity of the driver. The driver made certain admissions, and was advised that he would be proceeded against by summons. The driver gave an address which the appellant acknowledges is the address of his girlfriend. It seems to me that if this is not sufficient evidence of identification, the Court would be sending a message to police that it is never appropriate to proceed by way of summons, because a driver stopped and producing a photographic driver's licence may later challenge whether he or she was the driver. Should police proceed by way of arrest in all cases, immediately detaining all persons alleged to have committed driving offences, and only releasing them upon some further proof of identity?

25. It is certainly the case that the courts must proceed with appropriate caution in respect of identification evidence: see Johnson v Giumelli [2003] ACTSC 58 per Crispin J. However, this was not evidence of a bystander purporting to identify an offender from a fleeting observation. It was not a case of reviewing video footage or photos some time after the offence. Here the two police officers conducting the RBT were making a direct comparison between a photographic driver's licence and the driver. The licence was in the name of the appellant. The officers say that they were satisfied that the photograph was of the appellant. They were subject to what the Magistrate described as vigorous cross-examination, but maintained this position. They accepted the driver's identification, and decided to proceed by way of summons, such summons to be served at the address nominated by the driver, which the appellant acknowledged was his girlfriend's address.

26. Detective Senior Constable Evans said in evidence (AB 34) that -

... as a matter of course when I stop any vehicle I look at the licence, look at the person on the photograph on that licence and compare that with the driver. On this occasion it was the same person although a few years younger obviously but it - same identifying features, your Worship.

27. The police of course have to go through this process, and have to apply their minds to whether or not a matter should proceed by way of arrest or summons. If the process of identification that has been set out in this case is not sufficient identification evidence, it would seem to me to follow that police should never proceed by way of summons in the face of production of photographic evidence by a person who has the same features as the photographic licence. The identification evidence here, it seems to me, was reliable, and the Magistrate was entitled to rely on it. The Magistrate in her reasons adverted to the tests to be applied in relation to identification evidence by referring to the decision of Chief Justice Miles in Thomason, but was satisfied that the evidence was reliable and that she could be satisfied that the person driving the car was the appellant.

28. There was additional identification by way of the police officers asserting that they could identify the appellant before the Court as the driver. The respondent acknowledges that such in-court identification is of lesser probative value, but submits that this was nevertheless admissible. It seems to me that this was taken into account by the Magistrate, but that her decision was primarily based on the identification by the two police officers at the time of the incident, and that the in-court identification was only accorded appropriate weight.

29. It seems to me that the Magistrate did not err in admitting the identification evidence and taking it into account. She also took into account the evidence of the appellant and his girlfriend, but rejected that evidence. In their cross-examination, counsel for the prosecution noted that the appellant, as a person with prior convictions for driving while unlicensed, had a strong motive to lie as, if convicted, he would face a serious penalty. It seems to me that this was not the basis for the Magistrate's rejection of the defence evidence, but that it is not inappropriate for counsel for the prosecution to cross-examine a defendant this way, or to submit to a Magistrate that a defendant may have a strong interest in the outcome of a proceeding (Ellem (1994) 75 A Crim R 370).

30. It was common ground that the Magistrate made a factual error in her reasons in relation to the ownership of the vehicle driven by the appellant. It seems to me, however, that this error does not affect the final finding made, as the significant evidence going to identification was the production by the driver of the photographic licence in the appellant's name and with the appellant's photo, and the evidence of the police that the driver was the same person as the person in the photograph, and the evidence as to the address that the driver gave in respect of the service of the summons.

31. I am not satisfied that the appeal against conviction on the basis of identification is made out.

32. The appeal against conviction in respect of matter No CC2002/6694 is upheld. The appeals against conviction in respect of matters No CC2002/6695 and No CC2002/6696 are dismissed.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Solicitor for the respondent: ACT Director of Public Prosecutions