DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal against a conviction in the Magistrates Court at Maroochydore on 1 September 2008. At trial the appellant was represented by an experienced solicitor.

2. [2]
   The appellant was convicted of a breach of section 126 of the Transport Operations (Road Use Management – Road Rules) Regulation 1999 (Qld) (“the Road Rules”).  That section provides “A driver must drive a sufficient distance behind a vehicle travelling in front of the driver, so the driver can, if necessary, stop safely to avoid a collision with the vehicle.  Maximum penalty – 20 penalty units.”

3. [3]
   The Magistrate fined the appellant $150, in default – 3 days imprisonment.

4. [4]
   The appellant had been charged with an offence against section 83 of the Transport Operations (Road Use Management) Act 1995 (Qld) (“the Act”).  The trial proceeded on this charge.

5. [5]
   Section 83 provided “Any person who drives a motor vehicle on a road or elsewhere without due care and attention or without reasonable consideration for other persons using the road or place is guilty of an offence. Maximum penalty – 40 penalty units or 6 months imprisonment.” The bench charge sheet alleged a lack of due care and attention.

6. [6]
   The evidence consisted of some photographs of the roadway in question and the oral evidence of the respondent and the appellant. In his reasons for judgment, the Magistrate recorded that he considered both witnesses credible witnesses – that overall, the two versions of events differed little.

7. [7]
   There were four grounds of appeal:

• The Magistrate erred in acting under section 48 of the Justices Act 1886 (Qld) after the evidence had concluded by substituting a charge under section 126;

• The Magistrate erred in convicting the appellant of the charge without identifying the precise wording of the charge;

• The conviction on the new charge was inconsistent with dismissal of the original charge.

• The conviction on the new charge was against the weight of the evidence.

8. [8]
   The respondent’s evidence before the Magistrate was to the following effect. He was on general patrol in a police vehicle. He was alone. He was driving along Eudlo Road, a two lane bitumen road, towards the intersection of Bamboo Road with Eudlo Road. This intersection was in the vicinity of a crest in Eudlo Road. He had been travelling in a 100 kilometres an hour speed zone and was approaching a speed limit sign indicating 80 kilometres an hour. The appellant was travelling in the opposite direction in an 80 kilometre per hour zone. He observed a vehicle he thought was a white utility travelling towards him on its correct side of Eudlo Road., approaching the intersection. His impression was that it was slowing, perhaps to turn into Bamboo Road. He observed the vehicle driven by the appellant quickly swerve out from behind the utility into the path of his police vehicle. Until that occurred he had not been aware of the appellant’s vehicle following the utility. In swerving out as it did, it crossed the double white lines in the centre of the road, except that its passenger side wheels remained on the correct side of the double lines. When confronted with the appellant’s vehicle on the incorrect side of the road, the respondent swerved the police vehicle off the road to avoid a possible collision. The appellant’s vehicle stayed on the incorrect side of the road for a short distance and then returned to its correct side of the roadway before it reached the point where the respondent had driven off the road. After the appellant’s vehicle had passed the police vehicle, the respondent followed and stopped it. During a conversation with the appellant, during which the respondent was admittedly upset and angry, he asked the appellant why he had performed the manoeuvre, whether there was a reason for it. The appellant said to him words to the effect that he was in a hurry to get home, that he had to mow his grandmother’s lawn.

9. [9]
   In the appellant’s evidence to the court he said that he was some 3 car lengths behind the vehicle in front of his vehicle. He agreed to a suggestion that meant he was about 6.6 metres behind it. He had followed that vehicle for some two kilometres and was travelling at approximately 75 kilometres an hour. It braked heavily. He saw no turn indicators activated, but saw the brake lights activated. He said “I did veer to the right, I did not see the oncoming police car. If I did not veer then I most likely would have run into the rear of the hatch.”

10. [10]
    The reference to a “hatch” represented a difference in description of the vehicle travelling in front of the appellant’s vehicle. The police officer thought it was a white utility, the appellant said it was a grey hatch. The Magistrate considered the apparently differing recollections of no particular significance; whatever it was, there was a vehicle in front of the appellant’s vehicle from behind which the appellant swerved his vehicle onto its incorrect side of the road, into the path of the police vehicle.

11. [11]
    After the evidence had concluded the solicitor for the appellant addressed first. Before he commenced and throughout his address no reference had been or was made to any amendment to the charge.

12. [12]
    In his address the prosecutor made reference to section 139 of the Road Rules which provides, inter alia, that a driver may drive to the right of continuous double centre lines in certain conditions. This reference was prompted by the appellant’s evidence during the trial about why he veered to the right and the address of his solicitor. The prosecutor submitted that had the appellant complied with section 126 of the Road Rules he would not have had to veer across continuous double lines to his incorrect side of the road to avoid a collision with the vehicle in front of his vehicle. He submitted section 48 of the Justices Act 1886 provided the court with power to amend the charge, that the court could find the appellant guilty of driving without due care and attention or amend the complaint to a charge under section 126 of the Road Rules.

13. [13]
    At the conclusion of the prosecutor’s address the Magistrate invited the solicitor for the appellant to reply. The solicitor for the appellant submitted it was inappropriate to amend the charge at that stage of the trial and it was not fair to do so.

14. [14]
    Section 48 of the Justices Act 1886 provides “if at the hearing of a complaint, it appears to the justices that –

15. [15]
    “Complaint” includes the term “charge” when used in any Act “and means an information, complaint or charge before a Magistrates Court.”^[1]

16. [16]
    Here there was no written complaint and summons. The charge upon which the appellant was tried was on a bench charge sheet.

17. [17]
    Section 50 of the Justices Act 1886 provides “If an order is made for the amendment of a complaint, summons or warrant, the Magistrates Court--- must-

 (a) immediately enter particulars of the amendment on the complaint, summons or warrant; and

 (b) give a copy of the order to the party against whom the order is made on request by the party.”

18. [18]
    Section 42 of the Justices Act 1886 provides:

 “(1) Except where otherwise expressly provided or where the defendant has been arrested without warrant, all proceedings under this Act shall be commenced by a complaint in writing, which may be made by the complainant in person or by the complainant’s lawyer or other person authorised in that behalf.

 (1A) However, where a defendant is present at a proceeding and does not object, a               further charge or an amended charge may be made against the defendant and be               proceeded with although no complaint in writing has been made in respect               thereof.”

19. [19]
    In his reasons for judgment, the Magistrate recorded that the defendant had highlighted a defence to the charge, that his actions were not sufficient to amount to driving of his motor vehicle without due care and attention, that his only action was to travel with part of his vehicle on the incorrect side of the roadway. He referred to the prosecutor’s submission regarding the court’s power to amend the charge pursuant to section 48 of the Justices Act 1886.   He then recorded that he was not satisfied on the evidence that the driving of the appellant was sufficient to substantiate a charge of due care and attention but that he was satisfied that the driving was sufficient to substantiate a charge of failing to keep a safe distance between vehicles.  He went on to say “Overall I find the defendant guilty of the charge of failing to keep a safe distance between vehicles.  Of the charge of driving without due care and attention I find the charge not proven.  That charge, due care and attention is struck out and the defendant will be discharged---.  Overall the due care and attention charge is struck out, the defendant is discharged.  On the charge of failing to keep a safe distance between vehicles I proceed to a finding of guilty.”

20. [20]
    Section 48 provides the Magistrate with a discretion to make an order for the amendment of a charge where there is a variance between the charge and the evidence adduced at a hearing in support of the charge. The section does not permit amendment to any charge which the evidence may support but is limited to amendment to an offence cognate to that which was charged; that is to an offence that is “akin in origin and quality and allied in nature to the offence originally charged”: Kennett v Holt (1974) VR 644 at 648 per Pape J.  See also Felix v Smerdon (1944) 19 ALJR 30; Fleming v Skerke, ex parte Skerke [1976] Qd R 48; Fox v Chiu, ex parte Fox [1978] Qd R 88; Hayes v Wilson, ex parte Hayes [1984] 2 Qd R 114;  Mbuzi v Torcetti [2008] QCA 231; Mitchell v Myers (1955) 57 WALR 49; Higgon v O'Dea [1962] WAR 140.

21. [21]
    In Felix the charge before the court was of an offence committed at Clermont on 12 May 1942.  The evidence related to an offence allegedly committed at Comet on  a date not earlier than 16 May 1942.  Latham CJ as did Starke J considered this was not a case of variance but was of a different offence.  The Chief Justice said “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.”

22. [22]
    In Fleming the cognate offences were being in charge of a motor vehicle whilst under the influence of liquor or a drug (the charged offence) and driving a motor vehicle whilst under the influence of liquor or a drug (the amended offence).  Both were charges under the then Traffic Act, section 16(1).

23. [23]
    In Fox the cognate offences were using land contrary to the provisions of the Town Plan for the City of Brisbane (the charged offence) and using a building contrary to the provision of the Town Plan (the amended offence). 

24. [24]
    In Hayes as in Fleming, the cognate offences were driving a motor vehicle while under the influence of liquor or a drug (the charged offence) and being in charge of a motor vehicle whilst under the influence of liquor or a drug (the amended offence). 

25. [25]
    In Kennett the cognate offences were failing to comply with a traffic control signal displaying a red circle alone (the charged offence) and failing to comply with a traffic control signal displaying an amber circle alone (the amended offence).

26. [26]
    In Mbuzi the cognate offences were driving a motor vehicle on a road with two continuous dividing lines, failing to drive to the left of those dividing lines in breach of section 132(3) of the Road Rules (the charged offence) and driving a motor vehicle on or over a continuous single line, along a side of or surrounding a painted island in breach of section 138(1) of the Road Rules (the amended offence).

27. [27]
    In Mitchell the cognate offences were driving a motor vehicle in a manner dangerous to the public (the charged offence) and negligent driving (the amended offence).  Dywer CJ speaking of the section of the Western Australian Justices Act providing for amendment where there is variance between a charge and the evidence in support of the charge, said “It does not mean that some new offence unrelated to that charged in the complaint--- can be the subject of amendment; it would be something more than a variance if an offence of a different nature and character could be substituted for that which is set out in the complaint or is the subject of a charge before the Justice; but it does extend to alleging what I might call a cognate offence which is established by the evidence; that is one similar in some way to that charged, or one which would be a constituent of the actual complaint which has been laid; and by a constituent I mean what the Code calls an element or something of the sort, an ingredient involved in the complaint laid and in that respect almost necessarily a complaint of a lesser gravity than that charged”.^[2]  In Mitchell both offences involved elements of driving and the quality of driving.  

28. [28]
    In Higgon the cognate offences were being the keeper of a room of public resort knowingly suffering a person under the age of 16 years to enter and remain there (the charged offence) and being the keeper of a place of public resort knowingly suffering a person under the age of 16 years to enter and remain there contrary to section 84 of the Police Act.  The full court agreed with the decision of Dwyer CJ in Mitchell.

29. [29]
    I consider the offence of which the appellant was convicted was a different offence to that charged. The only common element between the offence charged and the offence of which the appellant was convicted was that the appellant was the driver of the motor vehicle.

30. [30]
    The offence of which the appellant was convicted required proof the appellant failed to drive a sufficient distance behind a vehicle travelling in front of his vehicle so that he could, if necessary, stop safely to avoid a collision with it. Proof of “tailgating” may in an appropriate case be part of a body of evidence to support a charge of failing to drive with due care and attention but it is not a necessary element or component of it. The offence with which the appellant was charged required the court be satisfied that he failed to give the necessary care and attention to the driving task in the circumstances existing at the material time. The quality of the driving to be inferred from all the evidence was the issue or element.

31. [31]
    In my opinion the offence of which the appellant was convicted was not cognate with the offence with which the appellant was charged and upon which the trial proceeded. The Magistrate was not satisfied the evidence supported a conclusion the appellant drove without due care and attention. He was satisfied the evidence supported a different charge. He substituted the different charge and convicted upon that.

32. [32]
    The conclusion I have reached means the appeal will be successful. However I should deal with some other submissions that were made.

33. [33]
    Section 48 by its terms required the Magistrate “make such order for the amendment of the complaint--- as appears--- to be necessary or desirable in the interests of justice”. Section 50 provides that if such an order is made then the court “must –

(a) immediately enter particulars of the amendment on the complaint” in this case, the charge.

34. [34]
    The record does not disclose that at any time before proceeding to a finding of guilt on a charge of failing to keep a safe distance between vehicles the Magistrate amended the charge that was before him although he proceeded on the basis he had. He struck out the charge that was before him and discharged the defendant upon it. Following that, he responded to the prosecutor’s query whether he wished the wording of the amended complaint. He said “I don’t formally require it before me here and now. However I will require that to be placed on the court file so if I could have your undertaking to provide that.” The court file discloses that at some stage a bench charge sheet with the amended charge was placed on the file.

35. [35]
    The appellant has submitted that at the time the Magistrate convicted the appellant of the section 126 offence, the appellant was not before the court on that charge because there had been no amendment of the charge. Once the charge that had been before the court was to use the Magistrate’s words “struck out” and the appellant discharged, there was then nothing before the Magistrate which he could amend.

36. [36]
    I think this submission is correct. What occurred may be summed up as follows. During the prosecutor’s final address which followed the final address of the solicitor for the appellant, a submission was made which invited the Magistrate to convict of the offence charged or amend the complaint to the charge of which the appellant was ultimately convicted. The solicitor for the appellant was invited to make submissions in reply. There had been no indication from the Magistrate that he was contemplating amendment. The appellant’s solicitor responding to the prosecutor’s address submitted that it was inappropriate and unfair to suggest the charge be amended at such a late stage. Sometime later the Magistrate delivered his reasons and judgment. He referred to the prosecution submission about amendment, he indicated he was not satisfied the evidence was sufficient to substantiate a charge of driving without due care and attention but that it was sufficient to substantiate a charge of failing to keep a safe distance between vehicles. Then without informing the parties he was amending the charge, he found the appellant “guilty of the charge of failing to keep a safe distance between vehicles”, that the charge of driving without due care and attention was not proven, was struck out and the appellant discharged.

37. [37]
    Unless it be assumed that proceeding to convict on a charge other than the charge laid amounted to amendment of the charge before the court to the charge upon which the appellant was convicted, the Magistrate did not amend before convicting. Once he pronounced judgment on the charge of driving without due care and attention, that charge was finalised.

38. [38]
    A Magistrate may appropriately amend a charge pursuant to section 48 of the Justices Act 1886 at any time during the hearing up until pronouncing judgment: Mitchell v Myers (1955) 57 WALR 49; Paulger v Hall [2002] QCA 353.  Whenever it be done the Magistrate should be alert to ensuring a party is not prejudiced.  That would ordinarily require the parties are informed of the amendment or the intention to amend and be given the opportunity to respond.

39. [39]
    The appeal is allowed. The conviction entered by the Magistrate is set aside.