Queensland Police Service v Homer
[2016] QMC 23
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- Unreported Judgment
- Queensland Police Service v Homer[2016] QMC 23
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Queensland Police Service v Homer[2016] QMC 23
Queensland Police Service v Homer[2016] QMC 23
MAGISTRATES COURTS OF QUEENSLAND
CITATION: | Queensland Police Service v Homer [2016] QMC 23 |
PARTIES: | Queensland Police Service (Complainant) v Rhonda Merle Homer (Defendant) |
FILE NO/S: | MAG 00158752/15(8), CAIRN-MAG 00008718/15 |
DIVISION: | Magistrates Court |
PROCEEDING: | Application to amend complaint |
ORIGINATING COURT: | Cairns Magistrates Court |
DELIVERED ON: | 25/11/16 |
DELIVERED AT: | Cairns |
HEARING DATE: | 13/10/16 |
MAGISTRATE: | Pinder, J |
ORDER: | The Application to amend the complaint is refused |
CATCHWORDS: | Amendment of Complaint after plea of guilty s 48 Justices Act |
COUNSEL: | Mr Basso for the Complainant (QPS) Mr Wellenhall for the Defendant (LAQ) |
SOLICITORS: |
|
- [1]The defendant Rhonda Merle Homer was charged with two offences pursuant to the Transport Operations (Road Use Management) Act 1995 namely:
- That on the 1st day of August 2015 at Arriga in the Magistrates Courts District of Cairns in the State of Queensland one Rhonda Merle Homer whilst she was over the middle alcohol limit but not over the high alcohol limit did drive a motor vehicle namely a motor car on a road namely Mareeba Dimbulah Road Arriga and it is averred that the said motor vehicle is a motor car as defined in schedule 4 of the Transport Operations (Road Use Management Act) 1995; and,
- That on the 1st day of August 2015 at Arriga in the Magistrates Courts District of Cairns in the State of Queensland one Rhonda Merle Homer did drive a motor vehicle namely a motor car on a road namely Mareeba Dimbulah Road Arriga the said Rhonda Merle Homer not being at that time the holder of a driver licence authorising her to drive that vehicle on that road and at the time of committing the offence the said Rhonda Merle Homer was disqualified by a court order from holding or obtaining a driver licence and it is averred that the said motor vehicle is a motor car as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995 and it is averred that the said Mareeba Dimbulah Road is a road as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995 and it is averred that on the said 1st day of August 2015 the said Rhone Merle Homer was not the holder of a driver licence authorising her to drive the said motor vehicle on the said road.
- [2]The defendant entered pleas of guilty and was convicted of both charges on 26October 2015.
- [3]The sentencing of the defendant, following those convictions, has not yet concluded and the matter, in circumstances that, with respect, reflect poorly upon her legal advisors, has been adjourned on numerous occasions.
- [4]The defendant has filed an application seeking that charge 1 be amended, purportedly pursuant to s 48 Justices Act 1886. No formal written application was filed and served by the defendant. The application was made orally on 24 August 2016, some 10 months after the pleas were entered. The parties filed and exchanged outlines of submissions and the application was heard on 13 October 2016.
- [5]The prosecution opposed the application.
- [6]The parties accept that the issues for determination by the Court are:
- Whether s 48(1)(c) Justices Act 1886 empowers the Court to amend a complaint after a plea of guilty has been entered by the defendant, accepted by the Court and the defendant has been convicted; and
- If s 48(1)(c) so empowers the Court, whether, in the circumstances of this case, there is a variance between the complaint and the evidence adduced at the hearing such that it is necessary or desirable, in the interests of justice, for the Court to amend the complaint.
The Course of the Proceedings
- [7]The defendant was first charged by Notice to Appear.[1] The Notice to Appear served upon the defendant on 1 August 2015 at Mareeba, required her to appear and answer to the charges before the Mareeba Magistrates Court at 8:30am on 17 October 2015.
- [8]A chronology of the proceedings is set out in the table below:
6 August 2015 | The defendant, pursuant to s 139(2) Justices Act 1886, applied in writing for an adjournment of the proceedings from the Magistrates Court at Mareeba on 17 August 2015 to the Magistrates Court at Cairns on 17 August 2015. In that application the defendant stated, “I am now residing at the above address and wish to plead guilty to all the charges at the Magistrates Court closest to my place of residence.” |
17 August 2015 | The charges were remanded from the Magistrates Court at Mareeba to the Magistrates Court at Cairns at 9.00am on 1 September 2015. |
18 August 2015 | The Magistrates Court at Mareeba forwarded a Notice of Adjournment to the defendant giving notice of her requirement to appear before the Magistrates Court at Cairns at 9.00am on 1 September 2015. |
1 September 2015 | The defendant appeared personally and unrepresented before the Magistrates Court at Cairns and after the charges were read to her she entered pleas of guilty to both charges. After the facts proposed to be alleged against the defendant and details of her criminal and traffic history were read to the Court, the defendant sought an adjournment to obtain legal representation. |
22 September 2015 | The defendant appeared before the Magistrates Court at Cairns (represented by Richardson Eckersley Lawyers). Mr Eckerlsey confirmed her pleas of guilty and upon his application the charges were adjourned for a sentence hearing on 26 October 2015. |
26 October 2015 | The defendant appeared before the Magistrates Court at Cairns represented by Mr Eckersley. The charges were read to the defendant, she confirmed that she understood the charges and in respect of each charge she entered a plea of guilty. The Court accepted the defendant’s pleas of guilty and convicted her of the charges. The Court, pursuant to s 344 Corrective Services Act 2006 ordered that a pre-sentence report be prepared. The charges were remanded for sentence on 23 November 2015. |
23 November 2015 | The matter was adjourned to 16 December 2015 for the defendant’s solicitor to enable medical records. |
- [9]The proceedings were subsequently adjourned on numerous occasions for the provision of material by and on behalf of the defendant.
- [10]On 26 February 2016 Richardson Eckersley Lawyers filed an application effectively seeking leave to withdraw a plea of guilty to charge 1 (but variously described as an application to re-open pursuant to s 147A Justices Act 1886/an application for change of plea/an application for an order that the plea of guilty be vacated.)
- [11]On subsequent dates to which the defendant was remanded, directions orders were made for the filing and service of affidavit material and outlines of arguments, in respect of which neither party complied.
- [12]Legal Aid Queensland commenced representing the defendant and first appeared on her behalf on 10 August 2016 and on 24 August 2016 advised the Court that the earlier application was not being pursued. That application was dismissed.
- [13]Legal Aid Queensland foreshadowed making an application for amendment of the complaint and that application was ultimately heard and argued before the Court on 13 October 2016.
Does s 48(1) Justices Act 1886 empower the Court to amend a complaint after a plea of guilty has been entered.
- [14]Section 48(1) Justices Act 1886 provides as follows:
Amendment of Complaint
- (1)If at the hearing of a complaint, it appears to the justices that –
- There is a defect therein, in substance or in form, other than a noncompliance with the provisions of section 43; or
- There is a defect in any summons or warrant to apprehend a defendant issued upon such complaint; or
- There is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof;
then –
- If an objection is taken for any such defect or variance – the justices shall; or
- If no such objection is taken – the justices may
Make such order for the amendment of the complaint, summons or warrant as appears to them to be necessary or desirable in the interests of justice.
The Applicant’s submissions.
- [15]The defendant, in the outline of submissions and oral argument, did not refer to any authorities in respect of s 48 or amendment of complaints but rather sought to rely on the provision itself and argued that “at the hearing of the complaint” as set out in s 48, encompassed circumstances such as the present, where the defendant had entered a plea of guilty, had that plea accepted by the Court and had been convicted.
- [16]The applicant’s argument in effect was that “hearing of the complaint” included the sentencing of the defendant and that it was open to the defendant to make the application for amendment of the complaint right up until the point when the sentence was ultimately imposed.
The Respondent’s Submissions
- [17]The respondent submits that the words “at the hearing of the complaint” contained within s 48 require that any objection must be taken whilst the complaint is being determined and before the defendant is convicted.
- [18]The respondent relies on comments in the case of Mitchell v Myers[2]. The prosecution concedes that that decision and the other decisions in which it is submitted Mitchell v Myers was cited with approval, namely Hayes v Wilson; ex parte Hayes[3] and Paulger v Hall[4], do not specifically consider the present issue, i.e. whether the Court is empowered to make an amendment after a plea of guilty and conviction.
- [19]The prosecution submits that the three decisions are authority for the proposition however that, “the window of opportunity for making such amendment applications have closed once the final decision has been pronounced”.
Discussion
- [20]The Justices Act 1886 is silent as to the meaning of “hearing” for the purpose of s 48.
- [21]Section 4 Justices Act, the definition section, does not include a definition of “hearing” or “hearing of complaint”. Part 6, Division 2 Justices Act 1886 provides for hearing of complaints.
- [22]Section 144 Justices Act 1886 provides:
Both parties appearing
If both parties appear personally or by their lawyers then the Justices may proceed to hear and determine the complaint.
- [23]S145 provides for the taking of pleas in relation to simple offences. Section 145(1) provides:
Defendant to be asked to plead
- (1)When the defendant is present at the hearing the substance of the complaint shall be stated to the defendant and the defendant shall be asked how he or she pleads.
- (2)If the defendant pleads guilty, the Magistrates Court shall convict the defendant or make an order against the defendant or deal with the defendant in any other manner authorised by law.
- [24]Specifically s 145(2) provides that if the defendant pleads guilty the Magistrates Court shall convict the defendant or make an order against the defendant or deal with the defendant in any other manner authorised by law.
- [25]S146 (1) provides:
Where defendant pleads not guilty
- (1)If the defendant pleads not guilty then the court may –
- Proceed to hear the complainant and the complainant’s witnesses, and the defendant and the defendant’s witnesses, and the complainant and such witnesses as the complainant may examine in reply fi the defendant has given evidence other than as to the defendant’s general character and, upon consideration of all the evidence adduced, determine the matter and shall convict the defendant or make an order against the defendant or dismiss the complaint as justice may require; or
- (b)Upon good reason appearing therefor, before any evidence is adduced, adjourn the hearing.
- (2)A hearing may be adjourned pursuant to subsection (1) from time to time provided no evidence has been adduced before any court in respect of the complaint.
- (3)When a hearing is adjourned pursuant to subsection (1) the provisions of section 88 shall, with all necessary adaptations, apply thereto.
- (4)The hearing so adjourned may proceed at the time and place to which it is adjourned before a court constituted in accordance with this Act by such justices as may then be present, notwithstanding that the defendant has pleaded to the complaint.
- [26]This provision deals with the hearing of a complaint for a simple offence and empowers the Court after hearing evidence to determine the matter and either convict the defendant or make an order against the defendant or dismiss the complaint.
- [27]The general tenure of the Applicant defendant’s argument is simply that the “hearing of the complaint” contemplated by s 48 incorporates circumstances where the defendant has plead guilty and been convicted but not yet sentenced.
- [28]Mitchell v Myers dealt with a consideration of the comparable Western Australian provision in the Justices Act. It involved a hearing where there was a variance between the evidence and one of the charges preferred and the Magistrate at first instance amended the charge and convicted on that amended charge. In respect of when the amendment to the charge under the corresponding Western Australian provision could be made, Dwyer CJ said at page 53:
“a further question arises and has been raised by Counsel that is the time at which an amendment can be made. It has been suggested that it must be made before the opening of a defence. I do not think that is the strictly correct view. I think it can be made at any time before a final decision on the original complaint is made by the Justices.”
- [29]His Honour continued:
“it would be wrong if the Justices made any attempt to compel the Defendant to deal immediately with the defence to a complaint which had just arisen, but power to amend is present in the Act and there seems to be no reason why, if the Justices consider an offence has been proved, an amendment should not be made at any time before conviction or dismissal.”
- [30]The full Court in Hayes v Wilson; ex-parte Hayes, cited with approval Mitchell v Myers. The decision in Hayes v Wilson however does not consider when an application to amend under s 48 can be made.
- [31]The Court of Appeal in Paulger v Hall did however, in considering Mitchell v Myers, observe the dicta in that decision in relation to the timing of an application for amendment.
- [32]At paragraph 8 McKenzie J said:
“The common sense of these observations, the sterility of the opposite view and the inconvenience if the argument were correct are obvious. Mitchell v Myers contains dicta to the effect that an amendment can be made at any time before a final decision is made, although it was concerned with the latest amendment could be made not the earliest”.
- [33]Further at paragraph 31 Holmes J (as Her Honour then was) observed at paragraph 31:
“Not surprisingly there is authority to a contrary effect and it is in my view to be taken as established that an application for amendment may be made at any time at any point prior to decision.”
- [34]In Rule v The Commissioner of Police[5] Long DCJ was required, on an appeal against sentence, to consider the effect of an application to amend by the prosecution following conviction. The respondent, the Commissioner of Police, argued on the appeal that s 48 empowered amendment of the charge after conviction effectively to amend to include a circumstance of aggravation.
- [35]His Honour considered this issue commencing at paragraph 40 of the decision in these terms:
“From these premises, it is contended that this Court should grant leave for the amendment of the charge and that by reference to Hayes v Wilson; ex parte Hayes, the amendment would be to charge a cognate offence and it was contended that there is no prejudice to the appellant, particularly because he would be re-charged and able to enter a plea and the matter remitted for hearing, should be wish to contest the amended charge.
There are some immediate difficulties which are apparent in respect to this approach:
- (a)First, the approach may be seen as inconsistent with the decision in R v De Simoni and the absence of any suggestion, in that case, that the omission might be amenable to cure by amendment, in comparable circumstances and where the respondent had pleaded guilty to an offence which only charged the use of actual violence and not the circumstance of aggravation of wounding, as a consequence of that actual violence. In that case, there was no dispute as to a wounding having occurred, yet the conclusion was that the offender could only be sentenced by taking into account the use of actual violence but not the consequence of wounding, quite apart from any increase in the applicable maximum penalty not being applicable;
- (b)Secondly, the applicability of the passage taken from the judgment of Dawson and McHugh JJ in Maxwell v R, may need to be carefully considered in the light of other decisions and as to any such reasoning being applicable to problems that emerge in respect of the way in which the prosecution have pleaded a case. In any event, no application for amendment was actually made or considered by the magistrate and the proceeding that is now before this Court is consequential to the conviction of the appellant for the offence without the circumstance of aggravation;
- (c)Thirdly and whilst it is apparent that no specific issue was raised in respect of the actual application of s 50(1)(d)(iii), after the magistrate ruled that it was applicable without being specifically charged, it is otherwise apparent that the appellant had not abandoned the point that was taken, in the context of his having pleaded guilty to the offence without the circumstance of aggravation and where there was no express reference to the circumstances of aggravation in the agreed schedule of facts. Although it was clear that he was before the Court to be dealt with as an adult, there was no express acknowledgement, by way of guilty plea that the weapon was accepted to be a short firearm or that it was possessed in a public place without a reasonable excuse; and
- (d)Finally, it should be noted that Hayes v Wilson; ex parte Hayes was concerned with amendment of a charge that occurred in the course of a summary trial and with the application of s 48(1)(c) of the Justices Act 1886 and the reference to “cognate offences” must be viewed in that context.
Whilst it may be accepted that had the prosecution sought to do so, at the outset below, it may have been possible to seek an amendment of the charge or a fresh charge brought in substitution, it is another thing altogether to contend that leave might have been given to amend what was otherwise a regularly made charge, without any defect on the face of oit, after the defendant had pleaded guilty and had correctly taken the point that he could not be punished for a more serious offence, with which he had not been charged or convicted. Moreover, the respondent must now convince the Court that it is appropriate to allow such an outcome after the conviction of the less serious offence has been formalised and the appellant’s contention has been vindicated on appeal.”
- [36]Whilst the disposition of the appeal before His Honour did not turn directly on that point His Honour’s comments support the submission by the respondent that an amendment pursuant to s 48 is not permissible after a plea of guilty and conviction. The circumstances confronting the defendant, in respect of the belated application to amend charge 1, after a properly entered and accepted plea of guilty and after conviction do not appear to have been directly considered in any decision to which this Court has been referred.
- [37]The comments in Myers and Blewitt, cited with approval in Hayes v Wilson ex parte Hayes and Paulger v Hall are authority for the proposition that such amendment cannot be made after conviction.
- [38]In Rule v The Commissioner of Police Long DCJ expressed a similar view, albeit that the Court there was not required to consider that specific issue in the disposition of the Appeal before it.
- [39]In all the circumstances I am not persuaded that s 48 empowers the Court to amend a charge after conviction.
- [40]As I have found that there is no power to amend it is not necessary to consider the issue of the asserted variance of evidence with the complaint.
- [41]The Application is refused.
Footnotes
[1] See s 382 and s 388 Police Powers and Responsibilities Act 2000 whereby such a notice is taken to be a summons issued under the provisions of the Justices Act 1886 being taken to be a complaint and summons issued under the Justices Act 1886.
[2] (1995) 57 WALR 49
[3] (1984) 2 Qd R 114
[4] [2002] QCA 353
[5] (2016) QDC 64