COMMISSIONER OF POLICE v SCOTT MICHAEL KRISTIAN SMITH [2025] SASC 183

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (MAGISTRATE BROWNE) MCCRM-23-038519 Appellant: COMMISSIONER OF POLICE Counsel: MS C NOLAN - Solicitor: CROWN SOLICITOR (SA) Respondent: SCOTT MICHAEL KRISTIAN SMITH Counsel: MS J DANIEL - Solicitor: BARBARO THILTHORPE LAWYERS Hearing Date/s: 28/08/2025 File No/s: SCCRM-24-035257 B SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. POLICE v SMITH [2025] SASC 183 Judgment of the Honourable Justice McDonald 6 November 2025 MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING UNDER INFLUENCE OF INTOXICATING LIQUOR OR A DRUG CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT - IMMATERIALITY OR ABSENCE OF PREJUDICE CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AMENDMENT - TIME FOR AMENDMENT This is an appeal by the Commissioner of Police (‘the appellant’) against a decision of a Magistrate to dismiss an Information dated 13 October 2023. The Information charged the respondent with one count of driving a motor vehicle with methamphetamine in his fluid or blood, contrary to s 47BA(l)(a) of the Road Traffic Act 1961 (SA). The respondent had initially been issued with an expiation notice, and on 27 July 2023, the respondent elected to be prosecuted for the offence. At a pretrial conference on 14 August 2024, the Magistrate granted the application of the respondent to dismiss the Information. The grounds of appeal are: 1. The learned Magistrate erred in finding that the particulars were incorrect on the basis that the reference to the section of the statute creating the offence contained an error in the subsection. -- 1 of 19 -- 2. The learned Magistrate erred in finding that to amend the subsection of the section of the statute creating the offence outside the limitation period was prejudicial to the respondent. 3. The learned Magistrate erred in not exercising her discretion under s 181 of the Criminal Procedure Act 1921 (SA) (‘the CP Act’) to amend the Information where defects were identified. 4. The learned Magistrate erred in dismissing the Information under r 64.1(1)(c) of the Joint Criminal Rules 2022. The respondent also filed a Notice of Alternative Contention. The respondent contends that the decision to dismiss the Information should have also been made on the following grounds: 1. That the expiation notice issued to the respondent did not sufficiently identify the general nature of the alleged offence as laid in Court, such that the relevant limitation period was six months from the date of the alleged offence, in accordance with s 52(1)(a)(ii) of the Act. 2. Accordingly, the limitation period expired on 10 October 2023. The Information filed on 13 October 2023 was therefore statute barred and liable to be dismissed. Central to the grounds of appeal is a complaint that the Magistrate mischaracterised the nature of the amendments that the prosecution sought to make to the Information. There is no dispute on this appeal that if the amendments proposed by the prosecution created ‘a new charge’ or ‘a new proceeding’, the application to amend was correctly refused, as the respondent would have been denied the immunity which s 52 of the CP Act provides. It was the appellant’s contention that the Magistrate erred in refusing the application to amend the Information, as both proposed changes were minor, technical corrections that would not have prejudiced the respondent or resulted in a new or different charge. These typographical errors were plainly amenable to amendment under s 181 of the CP Act. Held: 1. The Notice of Alternative Contention is dismissed. The expiation notice was not invalid, and it therefore follows that the Information was not laid out of time. 2. Grounds 2, 3 and 4 have been established. 3. The appeal is allowed. 4. The orders of the Magistrate are set aside. 5. Count 2 of the Information is to be amended to delete the words “Incomplete Charge Info” and add the words “Drug drive” before the particulars of the offence, and to amend the subsection of section 47BA from (l) to (1). 6. The matter be remitted back to the Magistrates Court for trial before another Magistrate. Criminal Procedure Act 1921 (SA) ss 22A, 52, 181; Expiation of Offences Act 1996 (SA) ss 5, 6, 8, 15; Road Traffic Act 1961 (SA) s 47BA; Expiation of Offences Regulations 2011 (SA) sch 1; Joint Criminal Rules 2022 (SA) rr 62.1, 62.2, 63.1, 64.1, referred to. City of Playford v Mathie [2025] SASCA 45; Graham v Magistrates Court of South Australia [2018] SASC 28, applied. Johnson v Miller (1937) 59 CLR 467; Riessen v State of South Australia (2001) 79 SASR 82; Rossiter v Adelaide City Council [2020] SASC 61; S v The Queen (1989) 168 CLR 266; Walker v Police [2014] SASC 32, discussed. -- 2 of 19 -- POLICE v SMITH [2025] SASC 183 Magistrates Appeal: Criminal McDONALD J. 1 This is an appeal by the Commissioner of Police (‘the appellant’) against a decision of a Magistrate to dismiss an Information dated 13 October 2023. The Information charged the respondent with one count of driving a motor vehicle with methamphetamine in his fluid or blood,1 that was alleged to have occurred on 10 April 2023. The respondent had initially been issued with an expiation notice. On 27 July 2023, the respondent elected to be prosecuted for the offence. At a pretrial conference on 14 August 2024, the Magistrate granted the application of the respondent to dismiss the Information. 2 The grounds of appeal are: 1. The learned Magistrate erred in finding that the particulars were incorrect on the basis that the reference to the section of the statute creating the offence contained an error in the subsection. 2. The learned Magistrate erred in finding that to amend the subsection of the section of the statute creating the offence outside the limitation period was prejudicial to the defendant. 3. The learned Magistrate erred in not exercising her discretion under s 181 of the Criminal Procedure Act 1921 (SA) to amend the Information where defects were identified. 4. The learned Magistrate erred in dismissing the Information under rule 64.1(1)(c) of the Joint Criminal Rules, 2022. 3 Although there are four grounds of appeal, in essence they reflect the steps in the reasoning process adopted to arrive at the decision to dismiss the Information. 4 The respondent has filed a Notice of Alternative Contention. The respondent contends that the decision to dismiss the Information should have also been made on the following grounds: 1. That the expiation notice issued to the respondent did not sufficiently identify the general nature of the alleged offence as laid in Court such that the relevant limitation period was 6 months from the date of the alleged offence, in accordance with s 52(1)(a)(ii) of the Criminal Procedure Act 1921. 2. Accordingly, the limitation period expired on 10 October 2023. The Information filed on 13 October 2023 was therefore statute barred and liable to be dismissed. 1 Road Traffic Act 1961 (SA) s 47BA(1)(a). -- 3 of 19 -- [2025] SASC 183 McDonald J 2 5 Both the grounds of appeal and the notice of alternative contention are amended versions of the documents initially filed. As a consequence, the appellant and respondent require leave to rely on the amended version of their respective applications. Neither opposes the other being granted leave and I so order.2 Background 6 On 10 April 2023, the respondent was driving a motor vehicle on Onkaparinga Valley Road, Woodside, when he was stopped by police for the purpose of conducting a random breath test. The respondent returned a positive result to a drug screening test. The respondent then provided an oral fluid sample, which was forwarded to Forensic Science SA for analysis. 7 Between 14 and 27 April 2023, the analysis was conducted and methylamphetamine was detected in the sample. 8 On 29 April 2023, the respondent was issued with an expiation notice for the offence of “MOBILE DRIVER TESTING – METHYLAMPHETAMINE”. 9 As mentioned, on 27 July 2023, the respondent elected to be prosecuted for the offence. The adjudication process 10 On 25 August 2023, APP Symons was allocated the task of adjudicating the matter. The adjudication process involves a police prosecutor considering the evidence, advising on whether a prosecution should be commenced, and if so, nominating the offence/s to be charged. 11 For matters that begin as expiation notices, BEAMS is the system used by police for adjudications. When a matter is adjudicated, the prosecutor enters the proposed charges onto the BEAMS system, and an administrative employee from the prosecution unit creates a summons and emails the summons to the relevant court registry. The summons generated by the BEAMS system does not contain the description of the offence (‘the offence details’), only the particulars of the offence. 12 Upon receipt of the BEAMS generated summons, court staff are required to manually transfer the data to the Electronic Court Management System (‘ECMS’). At that point, court staff also add in a description of the offence. An ECMS generated summons is then created by court staff, which is sent back to the prosecution unit administration team, in order for the service of the summons to be facilitated by police. 13 On 25 August 2023, APP Symons entered a charge of “47BA(1)(A) RTA” into BEAMS, which created count 1 on the Information. For reasons that 2 Joint Criminal Rules 2022 (SA) r 30.1(3). -- 4 of 19 -- [2025] SASC 183 McDonald J 3 APP Symons cannot now recall, she did not complete the adjudication process that day. 14 On 6 October 2023, APP Symons went back to the file and erroneously entered into BEAMS another count of “47BA(1)(A) RTA”. That had the effect of creating two counts on the Information when there should have only been one. At that time, the duplication error went undetected. 15 On 12 October 2023, the BEAMS summons was generated by the Mount Barker Prosecution Unit administration team, which contained the erroneously duplicated offence. This summons was emailed to the Mount Barker Magistrates Court Registry (‘the Registry’) on 13 October 2023. 16 On or about 13 October 2023, the Registry emailed the Mount Barker Prosecution unit the final Information as generated through ECMS and service of the summons was organised. 17 By 21 February 2024, the duplication error had been identified and count 1 of the Information was withdrawn, leaving only count 2 to be determined by the Court. Count 2 read: Offence Details: Incomplete Charge Info Particulars: 2 On the 10TH day of APRIL, 2023 at WOODSIDE in the said State drove a motor vehicle REGISTRATION NUMBER S308AKG SILVER BMW SEDAN on A ROAD namely ONKAPARINGA VALLEY ROAD whilst there was present in HIS ORAL FLUID a drug. Section 47BA (l)(a) of the Road Traffic Act, 1961. This is a summary offence, It is further alleged that the prescribed drug found in the ORAL FLUID was METHYLAMPHETAMINE (Emphasis added to indicate the two errors) 18 The remaining count particularised a breach of “Section 47BA(I)(a)”, instead of “Section 47BA(1)(a)” of the Road Traffic Act 1961 (SA) (‘RTA’). It is of note that there is no section 47BA(l)(a) in the RTA. It would seem from the chronology that I have set out, that the error that occurred in entering the letter l instead of the numerical 1 must have taken place when the Information was put into ECMS by court staff in the Registry.3 19 The matter came before the Court on a number of occasions leading to the dispositive hearing that took place on 14 August 2024. Over the course of the 3 There is no dispute that both errors in the Information were administrative errors. -- 5 of 19 -- [2025] SASC 183 McDonald J 4 earlier hearings, no issue was raised about the form or the validity of the Information. The events of 14 August 2024 20 On 14 August 2024, the matter came back before the Court. It was confirmed that the police were only proceeding on the second count on the Information and that negotiations between the parties had been unsuccessful. 21 At that time, counsel for the respondent raised two issues with the Information. Those were that the “offence details” were stated as “Incomplete Charge Info” and that there was an error in the particulars in referring to s 47BA(l)(a) of the RTA. 22 In response, the prosecution foreshadowed an application to amend the Information.4 The respondent indicated that the application would be opposed. The basis of that opposition was that it was suggested that to permit the application would have the effect of changing the charge or creating a new charge outside of the six-month limitation period. The respondent submitted that in those circumstances the Information should be dismissed. 23 As foreshadowed, the prosecution made an application to amend the Information and opposed the application for it to be dismissed. It was submitted that the particulars of the offence were correct and that the errors on the Information were minor and of a technical nature and could be appropriately cured by amendment. Further, given that the particulars of the offence were correct, the respondent would suffer no prejudice by allowing the application to amend the Information. 24 The Magistrate acceded to the respondent’s application and dismissed the Information. I set out her Honour’s reasons in full: 1. An application to dismiss count 2 has been made by defence on the basis that the statutory provision in the particulars is incorrect. Section 47BA. The particulars indicate that it is (l)(a) of the Road Traffic Act 1961. The submission is that on the Information, the numerical 1 written in 1961 is different to (l)(a) of 47BA which indicates that it is the letter (l)(a) therefore defence argue that the statutory provision is incorrect. Secondly, they argue that the offence details do not indicate what the offence is. 2 Prosecution argue that the particulars of the offence are correct and therefore the omitting the offence details is not sufficient grounds to dismiss the charge. They argue that it can be rectified where the court may pursuant to s 181(2)(a) of the Criminal Procedures Act, amend the information to cure the defect. 4 The application to amend only related to the error under the heading “offence details”. It would appear that the prosecutor assumed that this was the error relied upon by the respondent and had failed to identify that the letter “l” had been entered instead of the number “1”. -- 6 of 19 -- [2025] SASC 183 McDonald J 5 3 Firstly, I find that the particulars are on the face of it incorrect, given that the subsection appears to be an (l) instead of a (1) and therefore to amend that part of the particulars outside of the six-month time limit is prejudicial to the defendant. 4 Secondly, I find that the offence details are not included and therefore the Information does not comply with rule 62.1(7)(a) of the Joint Criminal Rules 2022 whereby offence details must be entered. I use my discretionary power under rule 64.1(1)(c) to dismiss the charge. 25 Somewhat ironically, because the Magistrate’s reasons were printed in the Times New Roman font, the letter l appears identical to the number 1, highlighting the very technical nature of the error.5 26 Given the chronology of relevant events, it is convenient to deal with the Notice of Alternative Contention before considering the grounds of appeal. In the event that the respondent is successful in his alternative contention, the appeal grounds become otiose. The Notice of Alternative Contention – The invalidity of the expiation notice 27 The respondent raises three complaints as the basis for the contention that the expiation notice did not sufficiently identify the general nature of the allegations, and was defective. These are: 1. The expiation notice did not state the statutory provision that created the offence, but referred only to “code A880”; 2. the expiation notice did not refer to a short statement of the offence in simple language but rather stated “mobile drive testing – methamphetamine”; and 3. the expiation notice was issued to “Scott M Smith” when the respondent’s name is Scott Michael Kristian Smith. 28 There is no dispute that if the expiation notice was invalid, as contended by the respondent, the relevant Information was filed out of time as a consequence of s 52 of the Criminal Procedure Act 1921 (SA) (‘the CP Act’). This section relevantly provides: 52—Limitation on time in which proceedings may be commenced (1) Subject to any provision of an Act to the contrary, if a person is to be prosecuted for a summary offence, the proceedings must be commenced within the following time limits: (a) in the case of an expiable offence— 5 The Information was in Arial font, which made the error slightly more apparent. -- 7 of 19 -- [2025] SASC 183 McDonald J 6 (i) if an expiation notice was given to the person—the proceedings must be commenced within 6 months of the expiry of the expiation period specified in the notice; (ii) if an expiation notice was not given to the person—the proceedings must be commenced within 6 months of the date on which the offence is alleged to have been committed; 29 Consequently, if the alternative contention is correct, the applicable limitation period was six months from the date of the alleged offence, which expired on 10 October 2023. The Information was filed on 13 October 2023, which would have been at a time when the laying of the charge was statute barred. 30 Before considering the issues that have been raised, I propose to say something about the purpose and nature of expiation notices. 31 The Expiation of Offences Act 1996 (SA) (‘the EO Act’) creates a scheme that permits a person to avoid prosecution for minor offences, with the payment of a fine. A person alleged to have committed an offence that falls within the scheme may, nonetheless, elect to be prosecuted under s 8 of the EO Act. 32 The expiation of an offence does not constitute an admission of guilt or of civil liability.6 33 Conveniently, the Court of Appeal recently gave consideration to the expiation notice scheme under the EO Act in City of Playford v Mathie,7 and made the following observations:8 The EOA regulates the expiation of some summary offences committed in South Australia. It provides a legislative scheme through which minor offences may be dealt with by expiation. The scheme operates by allowing a person alleged to have committed a minor offence to accept liability for the alleged offence but avoid prosecution by paying a fee to expiate the offence. Despite the implication of criminal liability, the expiation scheme is fundamentally administrative in nature by way of its operation. In Walker v Police,9 Blue J described the object of the EOA as follows: The object of the Act is to provide a simple and expedient alternative to the institution of prosecution proceedings for relevant summary offences. This provides advantages to the issuing authority in avoiding the time and expense of instituting criminal proceedings. It provides advantages to alleged offenders of avoiding the time, expense, distraction and emotional cost of being involved in criminal proceedings and it also avoids any finding of guilt being made or conviction being recorded against the alleged offender. It provides advantages to the Government in 6 Expiation of Offences Act 1996 (SA) s 15(4). 7 [2025] SASCA 45. 8 Ibid at [54]-[57]. 9 Walker v Police [2014] SASC 32 at [26]. -- 8 of 19 -- [2025] SASC 183 McDonald J 7 that it reduces the resources otherwise committed to and expenses otherwise incurred in larger court systems to deal with prosecutions for all summary offences. The countervailing advantages and disadvantages associated with the expiation of an offence have been described as involving a ‘statutory bargain’ between the issuing authority and the person to whom an expiation notice has been issued.10 More recently, in Rossiter v Adelaide City Council,11 Livesey J (as his Honour then was) observed with respect to the procedural status of an expiation notice: … The giving of an expiation notice, together with the opportunity to elect to be prosecuted, is a procedure created by the Expiation of Offences Act 1996 (SA). As the word “expiation” suggests, it is a procedure for summarily expiating what is otherwise, and in any event, an offence. The right to prosecute does not ultimately depend upon whether the defendant has been given an effective expiation notice. (Footnote omitted; citation omitted.) 34 Section 5(1) of the EO Act provides that certain offences may be expiated, if the expiation notice is given to the person who is alleged to have committed a relevant offence. 35 Section 6 of the EO Act prescribes various requirements for a valid expiation notice, including that it be in a “prescribed form”.12 The prescribed form for such a notice is contained in sch 1 of the Expiation of Offences Regulations 2011 (SA) (‘the EO Regulations’). The requirements that a prescribed form must comply with are: 1—Expiation notice (1) The prescribed form for an expiation notice is a form that complies with the following requirements: (a) the form must include a heading identifying it as an expiation notice under the Expiation of Offences Act 1996; (b) the form must specify— (i) the expiation notice number; and (ii) the date of issue of the expiation notice; and (iii) the name of the issuing officer or a code enabling the issuing authority to identify the issuing officer; (c) the form must contain an allegation that a person committed an offence or offences and specify— (i) — 10 Riessen v State of South Australia (2001) 79 SASR 82 at [27], [31]. 11 Rossiter v Adelaide City Council [2020] SASC 61 at [40]. 12 Expiation of Offences Act 1996 (SA) s 6(1)(b). -- 9 of 19 -- [2025] SASC 183 McDonald J 8 (A) if the notice is to be addressed to the person as the owner or driver of a vehicle without naming or otherwise identifying the person—the vehicle registration number; (B) in any other case—the name and address of the person; and (ii) the general nature of the alleged offence or offences; and (iii) the time or times and date or dates of the alleged offence or offences (but if the time or date is the same as that of the notice, the time and date need not be separately identified); and (iv) the place or places at which the alleged offence or offences were committed; (d) the form must inform the person that the offence or offences may be expiated and specify— (i) the amount of the expiation fee for each offence; and (ii) if a levy is payable, the amount of the levy for each offence; and (iii) the total amount payable; and (iv) to whom the amount must be paid; and (v) the date by which the amount must be paid; (e) the form must include a statement of the choices available to the alleged offender, for example— YOUR CHOICES: You may on or before the due date for payment— • Dispute the allegation that you committed the offence(s) (or any of them) and elect to be prosecuted for that offence (or offences). If you elect to be prosecuted, you may get a summons. The summons will set out when and where to attend court. • Pay the total amount due for the offence(s) not disputed (including levies). • Enter into a payment arrangement with the Chief Recovery Officer which may include payment of the amount of the fee(s) in instalments, an extension of time in which to pay or other options by agreement with the Chief Recovery Officer. A fee will apply to enter into an arrangement. • If you think the offence(s) (or any of them) was trifling—apply to the [issuing authority] for a review of the expiation notice (for special meaning of trifling see section 4(2) Expiation of Offences Act 1996). If applicable: -- 10 of 19 -- [2025] SASC 183 McDonald J 9 • If you were not the person who committed the alleged offence to which the expiation notice relates, the relevant legislation may enable you to provide a statutory declaration to that effect. 36 These requirements are informed by the object and purpose of the scheme for the expiation of offences. As observed by the Court in Mathie:13 Parliament established a scheme for efficiently determining certain summary offences which sits outside of traditional criminal prosecutions and does not invoke the criminal jurisdiction of the Court. Properly understood, that scheme is not concerned with the charging requirements for criminal proceedings, and it was erroneous to draw any analogy between what must be included in an Information to properly advise a defendant of the case he or she must, and the less onerous provisions of the EOA and EOR relating to an expiation notice. The difference lies primarily in the purpose of the contents of an expiation notice. An expiation notice is merely concerned with providing sufficient information for the recipient to determine whether he or she wishes to expiate the offence, while the purpose of particulars in criminal proceedings is to ensure that a defendant to a criminal prosecution, and indeed the relevant court, have sufficient details of the prosecution case to understand the case the defendant must meet. The latter imposes a more onerous or rigorous requirement. 37 An expiation notice is not concerned with the engagement of the criminal jurisdiction of the Court and, accordingly, is not concerned with the inherent requirements of fairness relevant to the adjudication of criminal guilt, which is the basis for the long-established principles governing the institution of criminal proceedings. 38 The proper content of an expiation notice has been prescribed by Parliament having regard to the low seriousness, low penalty value, high volume occurrence and high repetition of the offending which may be the subject of an expiation notice. As a matter of public policy, it is appropriate that an expiation notice be issued with less specificity and detail as an alternative outcome to a criminal charge, by which criminal conduct may otherwise be dealt. 39 Relevantly, under s 6(3) of the EO Act, a broad category of persons are authorised to issue expiation notices without requirement for any form of legal training. It is the clear legislative intention that the EO Act provides a means for a range of government employees to issue expiation notices as an alternative to embarking on a criminal proceeding. Despite the implication of criminal liability, the expiation scheme is fundamentally administrative in nature by way of its operation. Did the expiation notice adequately identify “the general nature of the alleged offence”? 40 Pursuant to sch 1(1) of the EO Regulations, it is necessary for an expiation notice to specify: 13 City of Playford v Mathie [2025] SASCA 45 at [90]. -- 11 of 19 -- [2025] SASC 183 McDonald J 10 • the name and address of the person; • the general nature of the alleged offence; • the time and date of the alleged offence; and • the place at which the alleged offence was committed. 41 The expiation notice nominated “Scott M Smith, 16 Monterey Drive Munno Parra West SA 5115” as the subject of the notice. The respondent contends that this was insufficient to satisfy the requirement that the person is named on the expiation notice. 42 I reject that submission. There is no basis upon which to suggest that there is a requirement that the person’s middle name is included on an expiation notice. No doubt, the requirement for the provision of the name and the address of the relevant person on the notice is to ensure that it is received by the intended recipient. The details set out in the expiation notice, adequately served that purpose. 43 I also reject the suggestion that it was necessary for the expiation notice to include a reference to the statutory provision that created the offence. To do so is not required under the EO Regulations. Whilst it may have been preferable for there to have been reference to the relevant legislation, all that is necessary under the EO Regulations is that there is sufficient information to identify “the general nature of the alleged offence”. In my view, a description of “mobile drive testing – methamphetamine” is sufficient to satisfy that requirement. It follows that I do not accept the submission that it was necessary to include a further description such as “drug driving”. It would be expected that any reasonable member of the community would understand what was meant by the description that was provided. 44 I dismiss the Notice of Alternative Contention. The expiation notice was not invalid and it therefore follows that the Information was not laid out of time, at a time when it was statute barred. The Grounds of Appeal 45 Central to the grounds of appeal is a complaint that the Magistrate mischaracterised the nature of the amendments that the prosecution sought to make to the Information. It is therefore necessary to say something about particulars on an Information and the role that they play in a criminal prosecution. Legal principles – adequacy of particulars 46 The purpose of an Information is to require the prosecution to accurately identify the offence with which an accused is charged. It is a basic consideration of fairness in criminal proceedings that an accused should know the case that he or she needs to meet. -- 12 of 19 -- [2025] SASC 183 McDonald J 11 47 In Johnson v Miller,14 in the context of determining whether an Information contained a latent ambiguity, Dixon J made some general observations about the purpose of particulars in an Information. His Honour said:15 In my opinion [the prosecutor] clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence. 48 In S v The Queen,16 Gaudron and McHugh JJ also discussed the importance of an Information identifying the particular transaction relied upon by the prosecution:17 … the rule against duplicitous counts has, for a very long time, rested on other considerations. One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict. … The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet. … 49 A charge should be interpreted in the manner in which a reasonable accused would understand it,18 giving reasonable consideration to the words of the particulars in their context. Criminal Procedure Act 1921 (SA) 50 The common law position has been modified by statute. Section 22A of the CP Act provides: 22A—Description of offence (1) Every information, summons, warrant, or other document under this Act in which it is necessary to state the matter charged against any person shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge. 14 (1937) 59 CLR 467. 15 Ibid at 489-490. 16 (1989) 168 CLR 266. 17 Ibid at 284-285. 18 Graham v Magistrates Court of South Australia [2018] SASC 28 at [22]. -- 13 of 19 -- [2025] SASC 183 McDonald J 12 (2) The statement of the offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and, if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence. (3) After the statement of the offence, necessary particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be required. 51 A finding that an Information does not comply with s 22A of the CP Act does not lead to the conclusion that it is invalid in the sense that the proceeding is a nullity. In circumstances in which a charge is defective, the irregularity may be cured by an amendment.19 The power to amend an Information is found in s 181 of the CP Act: 181—Charges (1) An information is not invalid because of a defect of substance or of form. (2) A court may— (a) amend an information to cure a defect of substance or form (but if the defendant has been substantially prejudiced by the defect, no amendment may be made); or (b) dismiss an information if the defect cannot appropriately be cured by amendment. The Joint Criminal Rules 2022 (SA) 52 The Joint Criminal Rules 2022 (SA) (‘the Rules’) also contain a number of rules relevant to the drafting and filing of Informations. Rule 62.1 relevantly provides: 62.1—Information (1) A proceeding must be instituted by filing an Information in the prescribed form. … (6) The Information must show each offence charged in a separate numbered count. (7) The Information must include the following details in respect of each count as required by the prescribed form— (a) offence details being the short name of the offence and statutory provision if applicable; (b) particulars of the essence of the elements of the offence and in accordance with rule 62.2; Note— 19 Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408 at [49]. -- 14 of 19 -- [2025] SASC 183 McDonald J 13 Section 100(1)(b) of the Procedure Act requires an Information charging an indictable offence to contain “such particulars as are necessary for giving reasonable information as to the nature of the charge”. … 53 Rule 62.2 sets out the particulars required on an Information: 62.2—Particulars (1) If an offence comprises— (a) any one of several different acts or omissions; (b) an act or omission in any one of several capacities; (c) an act or omission with any one of several intentions; or (d) any other element in the alternative, the acts, omissions, capacities, intentions or other matters in the alternative may be stated in the alternative in the count charging the offence. … 54 Rule 63.1 provides for the amendment of an Information, with or without leave. Of particular relevance to this appeal, r 63.1(3) states: 63.1—Amendment with or without leave … (3) The informant may not amend under subrule (1) or (2) if the amendment would add a count against a party that is statute barred due to the effluxion of time. 55 I make three observations about the combined effect of the CP Act and the Rules. 56 The first is that both require a “statement of the offence” (CP Act) / “offence details” (the Rules). 57 Under the CP Act, the “statement of the offence” should:20 … describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and, if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence. 58 Under the Rules, the “offence details” must include “the short name of the offence and statutory provision if applicable”.21 20 Criminal Procedure Act 1921 (SA) s 22A(2). 21 Joint Criminal Rules 2022 (SA) r 62.1(7)(a). -- 15 of 19 -- [2025] SASC 183 McDonald J 14 59 Whilst the provisions are not identical, clearly the requirement for a statement of the offence/offence details is to inform an accused of the offence with which they have been charged, and the legislation under which the offence was created. 60 These details would have ordinarily been included under the heading “Offence Details” in the impugned Information. 61 The second observation is that both the CP Act and the Rules require that an Information provides adequate particulars. The CP Act identifies the requirement as particulars “necessary for giving reasonable information as to the nature of the charge”,22 and “shall be set out in ordinary language, in which the use of technical terms shall not be required”.23 The Rules as to particulars are more prescriptive and require the prosecution to set out the acts and omissions relied upon, as set out at [52]-[53]. The requirements under the CP Act and the Rules both focus on the prosecution identifying the conduct relied upon to establish the commission of the offence. 62 The final observation I make about the combined effect of the CP Act and the Rules is that it is plain that they are designed to ensure procedural fairness, focussing on substance over form. It is therefore unsurprising that both permit the amendment of an Information in circumstances that do not materially prejudice an accused. The nature of the errors in the Information 63 It is plain that there was a typographical error in the reference to the relevant section of the RTA. The particulars were otherwise appropriate and accurately drafted. As I have said, relevantly, there is no subsection 47BA(l)(a) of the RTA. There could not be (nor was there any suggestion) of genuine confusion or ambiguity arising out of the error. 64 There is also no dispute that the Information contained a further defect in that the offence details were incorrect and instead of “Incomplete Charge Info” the words “Drug Drive” should have been included. 65 It is obvious that what has occurred is that the court registry staff have omitted to add in the “Offence details” when entering the matter on to the ECMS, and by default, an “error” type entry of “Incomplete Charge Info” has been automatically inserted. 66 Again, it cannot possibly be suggested that the respondent was in any way misled or disadvantaged by this administrative oversight given the other details contained on the Information. 22 Criminal Procedure Act 1921 (SA) s 22A(1). 23 Criminal Procedure Act 1921 (SA) s 22A(3). -- 16 of 19 -- [2025] SASC 183 McDonald J 15 Consideration of the Grounds of Appeal 67 Although grounds 1 and 2 only relate to the error in the reference to the statutory section creating the offence in the particulars, there were, of course, two errors. 68 It would seem that it was on the basis of the combination of those two defects that the Magistrate dismissed the charge.24 That decision turned on a finding by the Magistrate that to permit the prosecution to amend the Information to correct those matters would amount to alleging a new offence, which was out of time. Further, that for the prosecution to adopt such a course, would amount to an impermissible attempt to avoid the six-month limitation period, which would be prejudicial to the respondent. 69 There is no dispute on this appeal that if the amendments proposed by the prosecution created ‘a new charge’ or ‘a new proceeding’, the application to amend was correctly refused, as the respondent would have been denied the immunity which s 52 of the CP Act provides. 70 Whilst it appears that the Magistrate considered the combined effect of the two errors on the Information, in order to give proper consideration to the nature and impact of those errors, it is appropriate to consider each separately. Offence details 71 The requirement for the name of the offence (the offence details/statement of the offence) to be included on the Information arises only as a consequence of s 22A of the CP Act and r 62.1(7)(a). However, neither the CP Act or the Rules require that the statement of the offence must necessarily appear under a separate heading on the Information. 72 It would appear that the standard manner in which this requirement is satisfied, as is apparent from the pro forma Information, is to include these details under the heading “Offence details”. That did not occur here. 73 The issue that then arises is what consequence, if any, did this have for the respondent. 74 The relevant section of the RTA (albeit with the identified error) is contained within the particulars. The particulars also contain the date and location of the offence, as well as the nature of the conduct said to constitute the offence. It cannot be said that the omission of an appropriate entry under the heading of “Offence details” created any ambiguity or confusion about the allegations made by the prosecution. 24 The Magistrate’s reasoning is unclear. Although both errors are referred to, her Honour found that to permit the amendment to the particulars would be prejudicial to the respondent. She dismissed the charge on the basis that the offence details were not included and therefore the Information did not comply with r 62.1(7)(a) of the Joint Criminal Rules 2022 (SA). -- 17 of 19 -- [2025] SASC 183 McDonald J 16 75 It therefore follows that insofar as it was necessary, any amendment to this aspect of the Information would have been of a technical nature and would have caused the respondent no prejudice. 76 The Magistrate was therefore in error in refusing the application to amend the Information to permit the deletion of the words “Incomplete Charge Info” and the insertion of the words ‘Drug Driving’ pursuant to s 181 of the CP Act. The particulars 77 The error in the particulars was first identified by counsel for the respondent at the pretrial conference that took place on 14 August 2024, the occasion upon which the Magistrate dismissed the charge. 78 At the outset of proceedings the respondent’s counsel raised the two defects on the Information and said the following:25 … the issue there is that the offence details are stated as ‘Incomplete Charge Info’, and the wrong provision of the Road Traffic Act is cited. I’ve had some discussions with my friend about that and some negotiations which haven’t been successful. I understand that prosecution is seeking to amend the information and that applications opposed. In our submission to insert offence details and change the provision reference would have the effect of creating a new charge or changing the charge and the charge is now out of time. There’s a six-month limitation period. So my application is for your Honour to dismiss the charge pursuant to s.181(2)(b) of the Criminal Procedure Act. 79 It would appear that despite this, the prosecutor failed to detect the typographical error in the particulars and put to the Court:26 Yes, so the particulars of the offence are correct. So the defendant was charged with a drug driving offence being one; with methylamphetamine that was detected. The correct section is 47 BA(1)(a) and it is correctly referenced I would submit in the information. 80 Clearly not picking up on the typographical error and focussing on the more obvious defect, the police prosecutor addressed his submissions to the error in the offence details. 81 It would seem that (even after her attention was drawn to it) the Magistrate also had difficulty in detecting the error in the particulars, as the respondent’s counsel had to make her point by taking the Magistrate to another numerical 1 that appeared on the Information to highlight the difference. During the course of which, the Magistrate commented:27 Having a look at the actual information I can’t tell the difference between whether it is a 1 or a l except it’s just got a stroke. So you’re saying that’s an 1. 25 T2. 26 T3. 27 T6. -- 18 of 19 -- [2025] SASC 183 McDonald J 17 82 Without calling on the police prosecutor, the Magistrate then ruled to dismiss the charge. 83 As I have said there is no s 47BA(I)(a) of the RTA. There could be no confusion about the offence with which the respondent was charged, particularly given the accompanying particulars. It cannot be suggested that he was misled to his detriment. 84 This was plainly a typographical error of a very minor nature. It was the type of error which was readily amenable to an amendment under s 181 of the CP Act. The amendment would not have resulted in the formulation of a new or different charge laid out of time. The Magistrate was in error in failing to amend the Information by replacing the letter “l” with the number “1”. Conclusion 85 I find that grounds 2, 3 and 4 have been established. I make the following orders: 1. I allow the appeal. 2. The orders of the Magistrate are set aside. 3. Count 2 of the Information be amended to delete the words “Incomplete Charge Info” and add the words “Drug drive” before the particulars of the offence, and to amend the subsection of section 47BA from (l) to (1). 4. The matter be remitted back to the Magistrates Court for trial before another Magistrate. -- 19 of 19 --