Collins v Mycock [1964] PNGLR 1 (7 August 1964)

1964

Papua New Guinea Law Reports - 1964

[1964] PNGLR 1 - Donald Ainsley Collins v Peter Mycock

[1964] PNGLR 1

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

DONALD AINSLEY COLLINS

APPELLANT (DEFENDANT)

V

PETER MYCOCK

RESPONDENT (COMPLAINANT)

Port Moresby

Minogue J

7 August 1964

SECTION 22a OF THE POLICE OFFENCES ORDINANCE 1912-1963 - “Services rendered”, meaning of in relation to common money count of “work and labour done” - Criminal Law - No offence disclosed in complaint - Whether complaint bad - Power of Supreme Court to amend complaint in which no offence disclosed - Whether conviction upon such a complaint should be quashed.

Section 22a of the Police Offences (Papua) Ordinance 1912-1963:

“22a.   A person who obtains any chattel, money or valuable security by passing a cheque which is not paid on presentation, or who passes any such cheque in payment or part-payment for services rendered or to be rendered to himself or to any other person, or partly in such payment or part-payment and partly for some other purpose, shall, notwithstanding that there may have been some funds to the credit of the account on which the cheque was drawn at the time it was passed, be guilty of an offence, unless he proves:

(a)      that he had reasonable grounds for believing that the cheque would be paid in full on presentation; and

(b)      that he had no intent to defraud.

Penalty: Imprisonment for twelve months.”

The term “services rendered” in section 22a of the Police Offences (Papua) Ordinance 1912-1963, has a wider meaning than what is understood by the law as “work and labour done” and work and labour done on a motor car is within the purview of the section.

The appellant was convicted of obtaining goods and services by passing a cheque which was not paid on presentation. Section 22a did not create such an offence and there was no evidence that the appellant had obtained a chattel by passing such a cheque. The offence disclosed on the evidence was that of passing a cheque, which was not paid on presentation, partly in payment of services rendered to him.

Held:

That the complaint was bad in that it disclosed no offence.

Held:

Further that neither a Magistrate nor the Supreme Court could amend a complaint in which no offence is disclosed.

Where it appears to the Magistrate that what is alleged in a complaint does not constitute an offence, or that the evidence disclosed another and different offence, he may go on with the trial if the accused is thereupon orally charged with the actual offence on which it is proposed to proceed, and he takes no exception to the absence of information or summons; any necessary adjournment being allowed to prevent injustice. If the Magistrate convicts upon an information or charge which discloses no offence or an offence for which the accused has not been duly charged the conviction is bad, and should be quashed.

The Supreme Court has no power to amend such a complaint or information.

Where a complaint fails to disclose an offence and the defendant is not then properly charged with an offence upon which he may be convicted any conviction by the Magistrate hearing the matter should be quashed.

Davies v. Andrews, (1930) 25 Tas. L.R. 84 and Ex parte Lovell, Re Buckley and Anor. [1938] NSWStRp 12; (1938) 38 S.R. (N.S.W.) 153, applied.

Broome v. Chenoweth, (1946) 73 C.L.R. 583 distinguished.

Counsel:

White, for the Appellant.

Dabb, for the Respondent.

MINOGUE J:  This is an appeal brought before the Court by a Notice of Appeal pursuant to the Justices Ordinance 1912-1961 of the Territory of Papua. The Notice stated the appellant’s intention to appeal against a conviction made by the Court of Petty Sessions at Port Moresby on the 21st April, 1964, whereby the Court convicted him of having on the 18th January, 1964, at Port Moresby, passed in payment for services rendered to him (namely car repairs and materials used therein) by Tutt Bryant (N.G.) Limited, a cheque drawn on the Commonwealth Trading Bank of Australia for the sum of £42 5s. 5d. made payable to the said Tutt Bryant (N.G.) Limited and signed “D. A. Collins” which cheque was not paid on presentation contrary to the provisions of section 22a of the Police Offences Ordinance 1912-1963 of the Territory of Papua.

The grounds of appeal taken were:

(a)      That the learned Resident Magistrate presiding over the said Court was in error in law in holding on the evidence that the work done in respect of which the said cheque was passed constituted “services” within the meaning of the said section.

(b)      That the learned Resident Magistrate was in error in law in holding that the word “services” in the said section had a wider meaning than the common money count “work and labour done”.

(c)      That the conviction was against the evidence and the weight of evidence.

In accordance with the provisions of the Justices Ordinance the depositions taken at the hearing before the learned Magistrate were before me, as were also his reasons for decision. From the depositions it appeared that the appellant acknowledged to the respondent that the cheque in question for £42 5s. 5d. was his cheque, that the state of his account when he wrote the cheque was “not too good”, that there was not enough money in the account to meet the cheque, that he was going to try and borrow some money to be put in the bank to meet it but could not manage to do so. It appeared also at the Petty Sessions hearing that Mr. White, who appeared there for the appellant, admitted that the cheque was passed for repairs to a motor car and parts for that purpose provided, that at the time of the passing of the cheque there were insufficient funds to meet it, and that the cheque was not met on presentation. No point was made of the admission having been made by Mr. White rather than by the accused, and it seems that the Magistrate acted properly in taking cognisance of such admissions. See Davis v. Lawrence[i]¹.

(His Honour here quoted section 22a of the Police Offences (Papua) Ordinance 1912-1963, and continued:)

Before the learned Magistrate Mr. White submitted that there was no case proved to warrant putting the defendant on his defence. The facts established showed, he said, that work was done on a motor car and for the purpose of doing that work parts were provided and the work, including the parts supplied, was paid for by a cheque which was dishonoured. The parts provided were chattels, and in order to be guilty of any offence under the section qua these chattels, there would have to be proved on obtaining of them by passing the cheque in question. There was no evidence that this was the situation in this case. Mr. White then went on to argue that the term “services rendered” as used in the section cannot be synonymous with the subject of the common money count “work and labour done”. “Services” must have a much narrower meaning intended to cover the relationship between people who encounter each other in business only casually, such as a taxi-cab owner and fare. By paying the cheque to Tutt Bryant (N.G.) Limited, the appellant had put his creditor into a better position in that proof of the debt was easier, and he went on to argue that the Legislature could not have intended to make a criminal offence of an action which is beneficial to the payee. His argument did not find favour with the magistrate, who, at the conclusion of his reasons for decision, found that the defendant passed a cheque which was not paid on presentation in part payment for services rendered and in part payment for parts supplied for the purpose of such services, that he failed to prove that he had reasonable grounds for believing that the cheque would be paid, and that he had not intended to defraud. He concluded his remarks by saying: “I hold on the finding aforesaid the defendant committed the offence created by the section. The defendant is therefore convicted.”

Before me Mr. White adopted substantially the same argument as he had in the Court below. He pointed out that the second part of the section was draconic in operation, that it introduced a concept entirely novel to the law, that it cast a net so wide that one-fifth of the population could be brought into Court and charged with an offence under the section, and that consequently I ought to give a narrow and limited meaning to the words used. The section, he submitted, should be interpreted so as to restrict the word “services” therein to those performed where the relationship between the performer and the recipient of the services is one of those casual chance relationships where payment is invariably made on the rendering of the services, and where in general the identity of the customer is unknown to the supplier of the services. Ambiguity exists, he said, where a word is capable of two meanings, one of which may be wide, and one narrow. Except where terms of art are used, words vary greatly in their context, and “services rendered” was not a term of art. If a word is fairly capable of a wider or narrower meaning in a criminal statute, to that extent it is ambiguous and the Court will prefer the more lenient construction.

Mr. Dabb, who appeared to support the conviction, on the other hand argued that there was no ambiguity or doubt in this section. “Serviecs”, in his submission, meant any skills employed for reward for somebody’s benefit or facilities provided for some person. It could include such things at a hair-cut, a taxi journey, hire of building and equipment, and work done on a citizen’s car.

In my opinion, the magistrate was right in his conclusion that work and labour done on a motor car were within the purview of the section. I agree with Mr. White that the section is draconic in its operation, and seems to go further than any of the comparable legislation which I have been able to peruse, but it may be that with the floating population in this Territory, it was thought that the ordinary civil remedies for a dishonoured cheque were insufficient. It is well known that people come to this Territory, obtain employment, buy cars and other chattels, and leave again, sometimes after as short a stay as three months. It is true, as Mr. White says, that the giving of a cheque for services rendered may render the creditor’s task of obtaining a legal remedy more easy, at any rate if process in execution is easily available to him. However that might be, my first task is to look at the words of the section and see whether any ambiguity exists. If there be none and a plain ordinary meaning can be ascribed to the words, then the first and paramount rule of construction is that if the words of the statute are themselves precise and unambiguous, no more is necessary than to expound those words in their natural and ordinary sense, the words themselves in such a case best declaring the intention of the Legislature. See Income Tax Commissioners v. Pemsel[ii]². See also Nokes v. Doncaster Amalgamated Collieries[iii]³, where Viscount Simon L.C. said: “The golden rule is that the words of a statute must prima facie be given their ordinary meaning. We must not shrink from an interpretation which will reverse the previous law, for the purpose of a large part of our statute law is to make lawful that which would not be lawful without the statute, or, conversely, to prohibit results which would otherwise follow. Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words...”

“Services rendered” for which payment is to be made, in my opinion, are clear and unambiguous words. Section 22a in its earlier part refers to the obtaining of money, chattels or any other securities, and in its later part, takes up in general terms a subject matter which in the community generally requires payment by one person to another. The term is not a term of art, but is a common expression in the community, and is sometimes used compendiously in invoices or accounts. It will be recalled that during the period of National Emergency during the last war, various legislatures in efforts to control prices enacted legislation dealing with “goods and services.” By way of example, in New Zealand charges for hotel accommodation were held to come within the category of charges for services. See Dwyer v. Hunter and Ors.[iv]⁴ I cannot see how it is possible either from a perusal of the section itself or from general experience to give the words in question the narrow meaning contended for by Mr. White. I cannot see any justification for giving to the term “services rendered” a narrower meaning than what is understood in the law by “work and labour done;” indeed, it seems to me to be both intended to have, and to have, a much wider meaning, and I do not think that the magistrate was in error in holding, as I understand him to have held, that it had a wider meaning. At the same time it does appear to me that the section is an extremely drastic one and could, in the hands of a private individual, be too easily used for the enforcement of a civil liability. It may be that consideration should be given to placing some restriction on the power to lay a complaint under the section, such, for example, as that contained in the comparable section in the Police Offences Act of Victoria (section 58) where the consent of the Attorney-General is required before launching a prosecution.

Mr. White did not address any argument on the last ground of appeal, and in my opinion there was ample evidence to support his finding on the facts. Accordingly, if the matter were to rest there, having rejected Mr. White’s submissions on the grounds of appeal, I should dismiss the appeal and confirm the conviction.

But the matter does not rest there, because at the conclusion of the argument on the grounds of appeal, Mr. Dabb very properly drew my attention to the complaint and summons upon which the hearing before the magistrate was based and to the fact that it was of the offence set out therein that the magistrate convicted the appellant. The complaint made by the respondent was that on the 18th day of January, 1964, at Port Moresby in the Central Petty Sessions District of the Territory of Papua, one Donald Ainsley Collins (the appellant) obtained from Tutt Bryant (N.G.) Limited goods and services to the value of £42 5s. 5d. by passing a cheque No. M212395 drawn on the Commonwealth Trading Bank of Australia, Port Moresby, for the sum of £42 5s. 5d. dated 18/1/64 made payable to Tutt Bryant and signed “D. A. Collins” which cheque was not paid on presentation contrary to section 22a of the Police Offences Ordinance. And the Court Register shows after stating the offence in these terms that the appellant was convicted.

The real offence disclosed by the evidence was that of passing a cheque, which was not paid on presentation, partly in payment for services rendered to the appellant. The complaint before the Court, in my opinion, was bad in that it disclosed no offence. Section 22a does not contain any offence of obtaining either goods or services by passing a cheque which is not paid on presentation. It does contain the offence of obtaining “any chattel” by passing such a cheque, but I am not satisfied that “any chattel” and “goods” are synonymous. If one looks at the definition of “goods” in the Goods Ordinance 1951, it will be seen that it is wide enough to include some items which may not be properly called chattels. It may be that the complaint would be capable of amendment by substituting the word “chattel” or “chattels” for “goods”, but there is no allegation anywhere in this case that any chattels were obtained by passing a cheque in payment therefore, so that this Court, on the face of it, is asked to uphold a conviction for an offence which is not disclosed in the complaint.

Mr. Dabb, however, submitted that I have the power to and should amend both the complaint and the conviction thereon to accord with what the magistrate found. This submission raises questions of difficulty and involves an examination both of the powers of this Court and of the magistrate with regard to amendment. Originally, appeal from a decision of justices to this Court was by way of an application for a quashing order on the hearing of which the Court’s only power of amendment seems to have been the amendment of the formal conviction or order. In 1956 a new set of provisions was substituted which gave an appeal generally to the Supreme Court to any person aggrieved by any conviction or order made by Justices. (See Ordinance No. 26 of 1956.) The powers of the Supreme Court on the hearing of such an appeal are set out in section 184 of the Justices Ordinance 1912-1961 (Papua), and those relevant to this appeal are sub-sections (c), (d) and (e) of that section, which are as follows:

“Upon the hearing of the appeal the Supreme Court or a Judge thereof shall inquire into the matter, and may-

(c)      Affirm, quash or vary the conviction or order appealed from or substitute or make any conviction or order which ought to have been made in the first instance.

(d)      Remit the case for hearing or for further hearing before the Court which made the conviction or order or any other competent Court.

(e)      Exercise any power which the Court which made the conviction or order might have exercised.”

No specific power of amendment is given to the Supreme Court, but it is clear enough that it may exercise such powers in that regard as the magistrate himself might have exercised.

And so I turn an examination of the powers of amendment possessed by the magistrate. At common law justices appear to have had no such powers. Their jurisdiction is purely statutory, and initially their only function seems to have been to hear and adjudicate upon complaints brought before them. If a complaint was defective, their duty was to dismiss it. If they abused this duty and proceeded to convict, the conviction was liable to be quashed by the Court of King’s Bench by means of the prerogative writ of certiorari. Initially, the requirements of the valid exercise of the summary jurisdiction were extremely strict. In the 19th century, however, legislation which had the effect of rendering summary convictions less open to attack was passed in England.

The first important legislation of this type was Jervis’ Act 11 and 12 Vict. c. 43 passed in 1848. Sections 1 and 3 of that Act provided that no objection should be taken or allowed to any information, complaint or summons or any warrant for any alleged defect therein in substance or in form or for any variance between the same and the evidence, but if any such variation should appear to the justices to be such that the party had been thereby deceived or misled, they might adjourn. These sections were enacted in New South Wales in 1850 and re-enacted in the Justices Act of 1902 of that State, and now appear as section 65 (1) and (3). Section 9 of Jervis’ Act is in all material respects the same as section 65 (2). Subsections (1) and (2) of section 65 find their exact counterpart in section 41 of the Justices Ordinance, 1912-1961 of Papua. That section reads:

“41.

(1)      No objection shall be taken or allowed to any complaint summons or warrant in respect of-

(a)      any alleged defect therein in substance or in form; or

(b)      any variance between any complaint summons or warrant and the evidence adduced in support of the complaint at the hearing.

(2)      No variance between any complaint and the evidence adduced in support thereof at the hearing in respect of the time or place at which the offence or act is alleged to have been committed shall be deemed to be material if it is proved that the complaint was in fact laid between the time limited by law in that behalf or that the offence or act was committed in the Territory as the case may be.”

In Queensland a section substantially the same as section 65 of the New South Wales Act was enacted as section 48 of the Justices Act of 1886, but with the important addition that provision was made for the amendment of any variance by order of the justices at the hearing. Section 42 of the Justices Ordinance (Papua) was enacted in terms identical with section 49 of the Queensland Justices Act and is substantially similar to section 65 (3) of the Justices Act 1902 of New South Wales. The section reads:

“If any variance appears to the justices to be such that the defendant has been thereby deceived or misled, they may, and at the request of the defendant shall upon such terms as they think fit, adjourn the hearing of the case to some future day, and in the meantime may commit the defendant or discharge him upon recognizance for his appearance at the time and place to which the hearing is adjourned.”

The word “Amendment” in the marginal note appears to be an error, and it should probably read “Adjournment”. The error has been taken into the Papuan Ordinance along with the section. Section 43 of the Papuan Ordinance enacts: “Every order for the amendment of a variance shall be entered on the proceedings of the justices and a minute thereof, if required, shall be given to the party against whom it was made.” This section is identical with section 50 of the Queensland Act. It will be seen that although no specific provision for amendment of a variance exists in the Papuan Ordinance, the existence of such a power seems to be implied by section 43, and it would appear that the draftsman of the Papuan Ordinance omitted the specific power because of some confusion engendered by his concurrent perusal of the Queensland and New South Wales Acts. I am of the opinion that in Papua the justices have the power to amend any variance between the complaint and the evidence adduced in support at the hearing and that that power is exercisable by this Court on appeal. Whether they have power to amend an information or complaint which shows defect in substance or in form, I am not prepared to say.

The question still remains: Can any permissible amendment cure such a defect as exists in this complaint? A magistrate’s jurisdiction to amend a complaint which disclosed no offence was considered by the Full Court of Tasmania in Davies v. Andrews[v]⁵. Unfortunately, the report of this case is not available in the Territory, and I have to rely on a note thereon contained in 4 A.L.J. p. 265. Section 27 of the Justices Procedure Act 1919 (Tasmania) enacts: “No objection shall be taken or allowed to any complaint . . . for any alleged defect therein in substance or in form or for any variance between it and the evidence in support thereof, and the justices present and acting at the hearing shall at all times make any amendment necessary to determine the real question in dispute or which may appear desirable.” A magistrate, trying a prosecution under a by-law of the Hobart City Council, took the view that no offence was disclosed by the complaint and dismissed such complaint. The Full Court of Tasmania upheld his decision. Nichols C.J. observed that no justice has any jurisdiction to try any man until that man has been charged with some offence which the justice has power by statute to try. His Honour thought that section 27, when it directed the justices to make any amendment necessary to determine the real question in dispute, did not require or authorise the justices to convert that which did not disclose an offence into a complaint, for that exceeded amendment. Clark J. was of the opinion that a complaint which disclosed no offence could confer no jurisdiction on the justices either as to the charge before them or as to anything else. He said: “But a complaint either confers jurisdiction or it does not. If it does, the justices can amend it; if it does not, they cannot amend.”

Section 65 of the Justices Act 1902 (N.S.W.) received an exhaustive examination by Jordan C.J. in Ex parte Lovell, Re Buckley and Anor[vi]⁶. Although section 65 contains no power of amendment, section 115 of the same Act allows the Supreme Court or a Judge to make an amendment to the conviction or order where the facts or evidence support the adjudication of the justice, and such an adjudication does extend beyond the charge or complaint, and such facts or evidence would have justified or justify any necessary allegation or finding admitted in such adjudication or in the formal conviction or order. After a review of the history of the relevant legislation, Jordan C.J. set forth a number of propositions at p. 173-174 which I think should be quoted in extenso: “A magistrate has no jurisdiction to convict a person except for a statutory offence; and it is contrary to natural justice to convict a person of a statutory offence with which he has not been charged. Hence, in order to support a conviction for an offence, it is necessary either that the information and summons upon which it is based should accurately state the acts necessary to constitute all the ingredients of that offence, or else, if they do not, that the accused person should have been accurately charged orally before the magistrate and should have raised no objection to the absence of information or summons: s. 133 “(Cf. Justices (Papua) Ordinance, sec. 200d). “Section 65 of the Justices Act 1902 does not enable a magistrate to convict of an offence upon an information which discloses no offence or to convict of an offence alleged in the information if the evidence does not support that offence, or to convict of an offence established by the evidence if it is a different offence from that charged in the information. If it appears to the magistrate that what is alleged in the information does not constitute an offence, or that the evidence discloses another and different offence, he may go on with the trial if the accused is thereupon orally charged with the actual offence upon which it is proposed to proceed, and he takes no exception to the absence of information or summons; any necessary adjournment being of course allowed to prevent injustice. If, however, the accused does object, there is nothing in s. 65 which obviates the necessity for an information and summons accurately charging the accused with the statutory offence of which it is proposed to convict him. If the magistrate convicts upon an information or charge which discloses no offence, or for an offence with which the accused has not been duly charged, the conviction is bad. The power of amendment in cases of statutory prohibition conferred by s. 115” (Cf. Justices (Papua) Ordinance, sec. 200c) “does not extend to a conviction which goes beyond the charge, nor to a conviction upon a charge which discloses no offence even if the evidence supplies the missing ingredient, although if the offence has been accurately charged, an omission in the form of conviction may be supplied.” These propositions, in my opinion, are equally applicable to the Justices Ordinance of the Territory of Papua. Difficulties have arisen with regard to the words `in substance or in form’, and as Nichols C.J. said in Davies v. Andrews[vii]<sup>7</sup>: “It is not easy to give an exact meaning to the language of the section, and in all cases which have been decided on the words “in substance or in form”, no one has succeeded in attaching a precise meaning to the words ‘in substance’, but I think it perfectly clear that the section cannot mean that `no objection shall be taken to a complaint which discloses no offence.’ I may be quite wrong, but such a proposition appears to me to be more nonsense.” With these observations I respectfully agree.

Mr. Dabb urged upon me that in this case there was a variance between the facts proved and the charge made, that the facts proved amply sufficed to support a charge of passing a cheque in payment for services rendered or in part payment therefor, such cheque not being met on presentation, that accordingly the magistrate could have amended the charge to obviate that variance, and that this Court can and should so amend. But I do not think that to be the position at all in the light of the authorities to which I have referred. This is not the sort of case referred to by Dixon J. (as he then was) in Broome v. Chenoweth[viii]⁸, when he refers to an offence being clearly indicated in an information, but, in its statement, there being some slip or clumsiness, which, upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Rather is it the case of an information containing nothing which can identify the charge with any offence known to the law, and such a case, as Dixon J. said, could not be covered by the power of amendment.

As I have already held, there is no offence of obtaining goods or services by passing a valueless cheque, and consequently there was no offence disclosed in the complaint. That being so, section 41 can have no application, and there was no power in the magistrate to amend the complaint. What he could clearly have done was at the close of the evidence to have orally charged the appellant with the offence of which he appeared on the facts to have been guilty. If he had done that and there was no objection on the part of the defendant, as would seem extremely likely to have been the case, section 200d of the Justices Ordinance would provide complete justification for a conviction for such an offence. See Ex parte Lovell, Re Buckley and Anor.[ix]⁹; R. v. Wharton[x]¹⁰; Ex parte Glasheen[xi]¹¹ and the judgment of Darley C.J. in that case at p. 145 where, quoting from the judgment of Hawkins J. in R. v. Hughes[xii]¹² a case which was heard before ten Judges) he says: “A flood of authorities might be cited in support of the proposition that no process at all is necessary where the accused, being bodily before the Justices, the charge is made in his presence and he appears and answers it.” Blackburn J. in R. v. Hughes12 said: “I think when a man appears before justices and a charge is then made against him, if he has not been summoned he has a good ground in asking for an adjournment; if he waives that and answers the charge, a conviction would be perfectly good against him.”

It follows that in my opinion the proper course for the magistrate was to have re-charged the defendant, and if the defendant required the charge to be properly formulated and a fresh information or complaint filed, it may be that this request should have been granted. It does not seem that this Court can now remit the case under section 184 (d) for this to be done, because an oral charge requires the presence of the defendant before the Court, and there is at present no process in existence to compel his attendance there. Nor can this Court exercise the power given to it by section 184 (e), because the appellant is not before the Court. In any event, as more than six months has elapsed since the passing of the cheque concerned, neither the magistrate nor this Court has the power now to convict, whatever form a fresh charge may take. See Police Offences Ordinance 1912-1963, section 104.

The final matter which has troubled me is whether in the light of the course taken at the hearing before the magistrate, I should conclude that there has in fact or in substance been an oral charge made of passing a cheque which was not met on presentation in payment for services rendered, to which the appellant pleaded not guilty and on which he was convicted. If that were the case, section 200d of the Justices Ordinance would compel me to uphold that conviction. It is clear enough that Mr. White directed the major part of his argument to such a charge and took no objection to the form of the complaint or summons. However, the magistrate’s reasons for judgment indicate that he was also meeting a charge of obtaining goods by false pretences, and his submission on that aspect was upheld by the magistrate. I am not satisfied that either the appellant or his Counsel clearly understood the precise nature of the charge which the former was called upon to meet. The Court records which I have before me certainly show that no proper formal oral charge was made, and it seems to me that some confusion could well have existed. It may be that if the proceedings had been put in order and the only offence open properly charged, consideration could have been given to further or other defences. Whilst it does seem on the material before me that the appellant has committed an offence, in the end I do not feel satisfied that he was ever clearly charged with that offence, and I am of opinion that at this stage I am unable to amend the record to show such a charge. Accordingly the conviction will be quashed.

Conviction quashed.

Solicitor for the Appellant: N. H. White.

Solicitor for the Respondent: S. H. Johnson, Crown Solicitor.

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[i](1910) St.R.Qd. 98.

[ii] (1891) A.C. 534 at p. 543.

[iii] (1940) A.C. 1014 at p. 1022.

[iv](1951) N.Z.L.R. 177.

[v](1930) 25 Tas.L.R. 84.

[vi](1938) 38 S.R. (N.S.W.) 153.

[vii](1930) 25 Tas.L.R. at p. 89.

[viii](1946) 73 C.L.R. 583.

[ix](1938) 38 S.R. (N.S.W.) 153.

[x](1878) 4 V.L.R. (L) 160.

[xi](1898) 19 N.S.W.L.R. 141.

[xii][1879] UKLawRpKQB 54; 4 Q.B.D. 614 at p. 626.