Amendments to an indictment are often a matter of some controversy during a trial.
There is a wealth of law setting out the importance of the indictment as a document and the consequent reticence of the court to tolerate amendments thereto. As was said in R v Darko Janceski  NSWCCA 281, the presentation of the indictment is “the most fundamental of the procedures that attend a criminal trial for an indictable offence”.
Weighed against that is Regina v Lykouras  NSWCCA 8, where the court held that “the trial judge and this Court are concerned with ensuring a fair trial to the accused and not with some broader concept of unfairness to restrict the Crown in its conduct of the prosecution as might be expected in a sporting contest.”
With that as background, the general approach by the courts has been that the indictment can only be amended where it does not cause any significant prejudice or embarrassment to the defendant. As such, amendments prior to the commencement of a trial will seldom be refused, and amendments even very late in the trial process often permitted where it does not appear that there is any basis to contend but there has been prejudice to the defence (in particular MM v R  NSWCCA 262).
Maher v R  HCA 31; (1987) 163 CLR 221
“By a plea of not guilty, an accused puts himself "upon the country" or, to use the words of the Code, demands to be tried by a jury and he must be put in charge of the jury to inquire whether he is guilty or not guilty of the offence to which he has pleaded. The course of procedure contemplated by the Code and the Jury Act calls for the proper officer to give the accused in charge of the jury on those offences charged in the indictment which the jury have been sworn to try. The issues to be tried are raised before the jury is sworn and empanelled, not afterwards. It is generally true to say that the jury cannot try issues which they have not been sworn to try and therefore that an accused cannot be put in charge of the jury to inquire whether he is guilty or not guilty of an offence to which he has not pleaded when the jury is sworn.”
Regina v Lykouras  NSWCCA 8
“The point is that both the trial judge and this Court are concerned with ensuring a fair trial to the accused and not with some broader concept of unfairness to restrict the Crown in its conduct of the prosecution as might be expected in a sporting contest.”
Borodin v R; Borodin v R; ED v R; Bogomiagkov v R  NSWCCA 83
“Section 21 of the Criminal Procedure Act permits the court to make orders for amendment of an indictment where to do so would not result in injustice. Relevant injustice does not arise simply because the amendment of the charge deprives the accused of taking a technical point based upon an inconsistency between the statement of the charge and the evidence in support of it. Tactical decisions may have been made by the defence upon the basis of the wording of the charge, but it does not follow that the trial judge should refuse leave to amend the indictment simply because those tactical decisions will be rendered fruitless. It will only be in a case where the accused would be irreparably prejudiced in meeting the charge as amended that leave should be refused.”
KAMM, William v. Regina  NSWCCA 201
“In my opinion, there is a real question whether any amendment was necessary in this case. The issues joined on the charge as framed, if found by the jury against the appellant, were sufficient to establish the guilt of the appellant of an offence as existing at the time of its commission.”
MM v R  NSWCCA 262
“I am unable to see how the cross-examination of the complainant might have been significantly different had the indictment been amended at an earlier point in the trial. It is also of significance, as I see it, that no application was made to have the complainant recalled before the Crown formally closed its case… I am not persuaded that there was any miscarriage of justice resulting from the amendment of the indictment, even at a late stage in the trial.”
Mason CJ, Wilson, Brennan, Dawson and Toohey JJ
1. In the Supreme Court of Queensland on 14 October 1985 the applicant was convicted on the verdict of a jury of two offences. The first offence of which he was convicted was that:
" between about the 31st day of March 1972 and about the 1st day of December 1978 at Southport in the State of Queensland and elsewhere, Brian James MAHER and John Patrick DONNELLY did conspire together and with Lloyd Errol FAINT, Graham David SPENCE, Alan Roy PALMER and Lee Gabriel HURLEY and divers other persons to defraud the Commonwealth."
This offence was charged under s.86(1)(e) of the Crimes Act 1914 (Cth) by count 1 in the indictment.
2. The second offence was that:
" between about the 31st day of December 1974 and about the 1st day of May 1976 at Southport in Queensland and elsewhere Brian James Maher and John Patrick Donnelly did conspire together to defraud T F & B Pty.Ltd. (formerly Penola Homes Pty.Ltd.) of the sum of $127,534.00 by fraudulent means".
This offence was charged under s.430 of the Criminal Code (Q.) ("the Code") by count 20 in the indictment.
4. The first and principal ground related to the circumstances in which count 20 was added to the indictment. The ground was formulated in this way:
" The addition of Count 20 to the indictment after the jury had been sworn was wrong in law and not authorised by the Criminal Code (Queensland) or any other law, whereby no jury was sworn to try Count 20 and the conviction thereon was a nullity".
6. The applicant then sought an adjournment of the trial because he was without legal representation. Some short adjournments followed to enable the applicant to pursue an application for legal aid. On 22 May the Crown sought to change the indictment by deleting counts 5 and 14 and adding counts 20 and 21. Counsel for Donnelly, Mr Jerrard, objected to the addition of counts 20 and 21. He summed up his objection in these words:
" ... if what is occurring is that nolle prosequis are being entered on an existing indictment to which pleas have been taken, that really the accused have a right to the selection of a new jury in respect of either of the whole indictment or in respect of charges which are added after the jury was selected."
He amplified this submission by arguing that the jurors had been chosen with specific charges in view and that, if counts were added, different considerations might arise in the selection of the jury.
7. The Crown submitted that the addition of counts 20 and 21 was authorized by s.572 of the Code or by s.21A of the Crimes Act. Both provisions relate to the amendment of indictments. His Honour was of the view that, if the application was to amend the indictment, it should be dealt with in accordance with s.21A of the Crimes Act. But he doubted that what the Crown sought to do was "a matter which properly ought to be dealt with by way of indictment (sic) since what is proposed involves the abandonment of particular charges and the substitution in the indictment of new charges". His Honour thought that the matter could be dealt with under the provisions of the Code relating to the joinder of charges and it was on that basis that he acceded to the Crown's application to add counts 20 and 21. In the course of his reasons, his Honour commented:
" It is the fact - and the record will confirm this - that the accused have pleaded not guilty in respect of the charges in the indictment in its original form, but for the record I wish to make it plain that the accused have not yet been put in charge of the jury in respect of any of the counts alleged in the indictment."
8. Although the jury had been sworn and empanelled on 10 May, the accused had not then been put in charge of the jury. On 22 May, after counts 20 and 21 were added to the indictment and some amendments were made to counts 16 and 17, the applicant and Donnelly were re-arraigned on the new and amended counts. In taking this course his Honour said:
" I will need to have both accused re-arraigned in respect of the new charges alleged and out of an abundance of caution I will have them re- arraigned in respect of the additional two matters in respect of which I have given leave to amend."
The accused pleaded not guilty to the charges in counts 16, 17, 20 and 21, and pleaded as well that the court had no jurisdiction to hear those charges. Their pleas to the jurisdiction were overruled. After the pleas had been taken, his Honour directed that both accused be put in charge of the jury. His associate placed the accused in the charge of the jury in respect of all counts remaining, being counts 1-4, 6-13 and 15-21.
10. It follows from this account of the proceedings that no further challenges to the jury were permitted consequent upon the addition of counts 20 and 21 to the indictment; nor was the jury sworn expressly to try the issues arising from the pleas of the accused to those counts. Therefore, it was submitted on behalf of the applicant, the conviction of the applicant on count 20 was a nullity or alternatively involved a miscarriage of justice warranting a new trial.
13. Counsel for Donnelly acknowledged before the trial judge that the evidence relating to the new charges had been led during the committal proceedings, and counsel for the applicant before this Court did not suggest otherwise. It is appropriate now to look at the relevant statutory provisions governing the course of a criminal trial in Queensland.
19. These provisions spell out the sequence of the steps to be taken to put an accused who pleads not guilty in charge of the jury: the indictment is presented, the accused is called upon to plead, he pleads not guilty, he is informed of his right of challenge, the jurors are called one by one, each member of the jury is sworn to try the issues, and the proper officer of the court gives the accused in charge of the jury. Giving the accused in charge of the jury is a traditional part of the criminal procedure: see Archbold, Pleading, Evidence and Practice in Criminal Cases, 42nd ed. (1985), par.4-176. The procedure, of long historical standing, is described by Dearsly, Criminal Process, (1853), p.49:
" The jury being sworn and assembled in their box, the clerk of arraigns addresses them thus, 'Look upon the prisoner, you that are sworn, and hearken to the evidence.' He then proceeds to read an abstract of the indictment ... after which he adds, 'Upon this arraignment he has pleaded not guilty, and for his trial hath put himself upon the country, which country you are; so that your charge is to inquire whether he be guilty of the felony whereof he stands indicted, or not guilty.'"
For an account of earlier times, see Forsyth, History of Trial by Jury, (1852), pp.206-207. By a plea of not guilty, an accused puts himself "upon the country" or, to use the words of the Code, demands to be tried by a jury and he must be put in charge of the jury to inquire whether he is guilty or not guilty of the offence to which he has pleaded. The course of procedure contemplated by the Code and the Jury Act calls for the proper officer to give the accused in charge of the jury on those offences charged in the indictment which the jury have been sworn to try. The issues to be tried are raised before the jury is sworn and empanelled, not afterwards. It is generally true to say that the jury cannot try issues which they have not been sworn to try and therefore that an accused cannot be put in charge of the jury to inquire whether he is guilty or not guilty of an offence to which he has not pleaded when the jury is sworn.
21. At common law an indictment could not be amended. Until the abolition of the grand jury, "it seemed impossible to amend an indictment by adding a fresh cumulative charge after the bill of indictment had become an indictment, for the indictment was the finding of the Grand Jury - Short and Mellor's Crown Practice, 2nd ed. 139": per Turner J. in Harema v. The Queen (1971) NZLR 147, at p 149. In the United Kingdom, a wide power of amendment was conferred by the Indictments Act 1915. But in proceedings governed by the Code, the only power of amendment (other than to correct formal defects, as to which see s.571) is to be found in s.572 of the Code which provides in part…
23. Thus, there were two objections to the course taken at the trial, each of which, it was submitted, rendered the trial a nullity or brought about a miscarriage of justice. The first objection related to the failure of the trial judge to inform the accused of their right to challenge the empanelled jury in regard to the additional counts. The second objection arose from the fact that the jury had not been sworn to give a true verdict upon the issues to be tried by them, because some of those issues related to counts that did not form part of the indictment when the members of the jury took their oaths.
29. The principle is clear. A jury must be sworn to try the issues joined between the Crown and the applicant on a count then appearing in an indictment. Here the jury found the applicant guilty of the offence charged in count 20, though it had not been sworn to try the issues on that count. A conviction founded on that verdict cannot stand. There was a failure to observe the requirements of the criminal process in a fundamental respect. Special leave should be granted to the applicant on that ground (it being unnecessary to determine the other grounds upon which the applicant relied) and the conviction of the applicant for the offence charged by count 20 of the indictment should be set aside.
1. I agree with Howie J.
2. I agree with Howie J.
3. This is an application for leave to appeal against an interlocutory order made by Judge Gibb in the District Court on 12 October 2004 when her Honour granted leave to the Crown to amend an indictment under s20 of the Criminal Procedure Act. The effect of the order was to permit the Crown to add a further and alternative count to the indictment that had previously been presented against the applicant. Her Honour having granted leave to amend the indictment, however, thereupon ordered that there be separate trials of the two counts. At the hearing of this application, the Court granted leave to the Crown to file an appeal against the order granting separate trials.
11. The amendment was opposed by Mr Doris, counsel appearing for the applicant. As has already been mentioned, her Honour granted leave to the Crown to amend the indictment by adding the alternative count but then went on to order separate trials of each of the counts, an order apparently not sought by either party. In light of the fact that the count to be added was in the alternative to the first count it is, to say the least, a somewhat curious result that the two charges should be tried separately. The reason for her Honour taking this course, however, was that, although she believed the amendment to be appropriate, she was of the opinion that the two charges were of a different nature and that there would be prejudice to the applicant if the trial of the alternative count proceeded with the principal charge.
12. The background to the application by the Crown to amend the indictment at a very late stage in the proceedings appears to be that it had been forewarned shortly before the trial that there was to be a challenge by the applicant to the admissibility of the evidence of the taking of the blood sample and the consequent analysis disclosing the presence of the morphine and cannabis. That challenge is to be on the basis that the sample was illegally taken because of a breach by police of the statutory regime governing the taking of a blood sample from the driver of a motor vehicle. The Crown, it seems as a matter of caution, sought to rely upon an alternative basis for proving that the applicant committed an offence under s 52A(3), being that he was driving in a manner dangerous by permitting his vehicle to leave the road surface.
21. A substantial part of the applicant’s argument in this regard seems to me to be based upon an asserted right to seek to have the charge dismissed upon a technicality without the Crown frustrating that right by laying a charge that may have to be determined on its merits. In my view there is no such right. It may be that the applicant feels aggrieved by the Crown’s attempts to strengthen the case against him because he believed, rightly or wrongly, that the charge initially laid by the Crown would fail at the outset because the evidence of the taking of the blood sample and its subsequent analysis would be rejected by the Court. But an accused person has no right to have a charge prosecuted on one particular factual basis and no other, nor to have the question of his guilt determined by reference to a single charge. It cannot be either oppressive or unfair, in my opinion, for the Crown simply to seek to prove a charge in more than one way, or to rely upon alternative charges arising from the one set of facts. This is so regardless of whether the alternative or additional allegation is raised before or after the trial commences.
22. If during the course of a trial, the Crown seeks to prove that the accused committed the offence charged in some way other than was opened to the jury or other than is set out in the particulars, the question that arises is whether the new allegation has caused the trial to become unfair because, for example, the accused has been deprived of the opportunity of meeting it by the late raising of the new allegation. If the unfairness cannot be addressed by, for example, witnesses being recalled or a short adjournment being granted to the accused, the trial judge will abort the trial and discharge the jury.
23. There is, of course, a rule of practice that precludes the Crown from raising an alternative count late in a criminal trial. But this rule is concerned with ensuring a fair trial and not with limiting the manner in which the Crown can proceed against an accused. The most recent discussion of this constraint upon the Crown’s right to conduct the prosecution as it chooses is found in R v Gulliford  NSWCCA 338. In that case the trial judge formulated an alternative verdict during the defence case. The Crown had not opened to the jury on the availability of such a verdict and it goes without saying that the alternative count was not set out in the indictment. Nevertheless the alternative was left to the jury on the basis that it was capable of being proved by the evidence and the jury might not have been satisfied of all of the elements that made up the principal offence charged in the indictment.
25. The point is that both the trial judge and this Court are concerned with ensuring a fair trial to the accused and not with some broader concept of unfairness to restrict the Crown in its conduct of the prosecution as might be expected in a sporting contest. I know of no occasion where a Court has refused to allow the Crown to rely upon an alternative count or an alternative way of proving the offence charged simply because to do so might deprive the accused of the chance of a complete acquittal. I do not believe that a court has such a power.
26. In the present case all that has happened is that, albeit very late in the proceedings, the Crown has sought to rely upon a further and alternative allegation of a criminal charge arising from the same facts and circumstances as that which gave rise to the initial charge brought against the applicant. As the Crown can rely upon an alternative count raised for the first time during a trial where to do so would cause no prejudice to the accused, I have difficulty in understanding how the Court can refuse to allow it to do so before the trial commences. Of course, the earlier the alternative allegation is raised, the less likely is it that the new allegation will prejudice the right of an accused to a fair trial.
1. I agree with Howie J.
2. I agree with Howie J.
3. On 16 March 2006 this Court dismissed an appeal against conviction by each of the four appellants and indicated that it would publish its reasons later. These are the reasons for which I joined in the order dismissing the appeals.
4. The four appellants and a fifth accused, BD, were arraigned before a jury and Judge Keleman SC (the Judge) on an indictment containing seven counts to the following effect:
1. Robbery of Mr Li while armed with an offensive weapon, being a knife (s 97(1) of the Crimes Act).
2. Robbery of Mr Hu while armed with an offensive weapon, namely a knife (s 97(1) of the Crimes Act).
3. While in company of each other detained Mr Li with intent to obtain a financial gain (s 86(2)(a) of the Crimes Act).
4. While in company of each other detained Mr Hu with intent to obtain a financial gain (s 86(2)(a) of the Crimes Act).
5. By threat of unlawful violence to Mr Li and his family, compelled him to affix a name to a paper with intent to defraud (s 103 of the Crimes Act).
6. By threat of unlawful violence to Mr Li and his family, compelled him to endorse a valuable security with intent to defraud (s 103 of the Crimes Act).
7. By threat of unlawful violence to Mr Li and his family compelled him to endorse part of a valuable security with intent to defraud (s 103 of the Crimes Act).
Each of the appellants and the co-accused pleaded not guilty and was tried before the Judge and the jury.
5. On day 13 of the trial and after the Crown's principal witnesses, Mr Li and Mr Hu, had given evidence, the Crown applied pursuant to s 20 of the Criminal Procedure Act for leave to amend the indictment as follows:
Counts 1 and 2: the word "firearm" to be substituted for the word "knife".
Counts 6 and 7: the words "write upon a paper" to be substituted for the words “indorse a valuable security".
The application was opposed by counsel for the appellants principally on the basis that it would result in an injustice in light of the manner in which the witnesses had been cross-examined. However, the Judge permitted the Crown leave to amend the indictment and it was amended accordingly.
17. As Mr Bodor SC counsel for the appellants explained, defence counsel had cross-examined the two witnesses based upon an allegation that the weapon used for the purpose of achieving the robbery was the gun and not the knife. This was so that a submission could be made to the jury that they would not be satisfied beyond reasonable doubt that the victims parted with their property by reason of the threat of violence arising from Bogomiagkov’s use of a knife, as alleged in the counts in the indictment, but rather because of the threat arising from Mr Borodin's use of the firearm. In this way it was to be argued that, even if the jury might be satisfied beyond reasonable doubt that the account given by Mr Li and Mr Hu was reliable, the Crown case should still fail on the armed robbery counts.
21. The Judge came to the view that, despite a complaint by defence counsel that they would have cross-examined the two witnesses differently had the charge referred to the gun rather than the knife, no injustice would be caused by the amendment of the indictment. He offered to have the two witnesses recalled for further cross-examination but this offer was not taken up.
22. In relation to the amendment to counts 6 and 7, the Judge noted that the amendment was to change one of the elements of the offence, as set out in s 103 of the Crimes Act, so that each count accorded with the evidence but without changing the actual conduct that was the subject of each of the charges: the signing of the relevant cheque. In R v Cook (NSWCCA, unreported, 9 May 1990) the amendment to the indictment was made at the end of the Crown case. Notwithstanding the lateness of the change to the wording of the charge, it was held that there was no injustice arising because the factual basis for the charge did not change and the wording of the charge more appropriately reflected the evidence in the Crown case. The Court rejected an argument that the power to amend an indictment was limited to technicalities.
24. In my opinion it is impossible to see how the amendments resulted in an unfair trial. The only prejudice suffered by the appellants was that the counts in the indictment were to be determined on their merits. With respect I agree with the Judge that it is difficult, if not impossible, to see how, in light of the nature of defence case, the cross-examination might have been significantly different had the indictment been amended at an earlier point in the trial. In any event the Judge offered to have the witnesses recalled and I do not understand how the appellants would have been further prejudiced by that offer being taken up.
25. Section 21 of the Criminal Procedure Act permits the court to make orders for amendment of an indictment where to do so would not result in injustice. Relevant injustice does not arise simply because the amendment of the charge deprives the accused of taking a technical point based upon an inconsistency between the statement of the charge and the evidence in support of it. Tactical decisions may have been made by the defence upon the basis of the wording of the charge, but it does not follow that the trial judge should refuse leave to amend the indictment simply because those tactical decisions will be rendered fruitless. It will only be in a case where the accused would be irreparably prejudiced in meeting the charge as amended that leave should be refused.
26. In the present case there was no miscarriage of justice resulting from the amendment of the indictment and, therefore, the ground of appeal should be rejected.
1. On 14 June 2005, the appellant was arraigned before Williams DCJ on five charges.
2. Four of them were charges of indecent assault. The first of these (count 1) was in the following terms:
That you between the 5th day of July 1993 and the 5th day of September 1993 at Camberwarra in the State of New South Wales did assault [the complainant] and at the time of the assault did commit an act of indecency on [the complainant] in circumstances of aggravation, to wit at the time of the offence [the complainant] was aged under the age of 16 years to wit, aged 15 years.
3. The other three (counts 2, 3 and 5) were in identical terms, except that the dates were respectively between 5 July 1993 and 30 August 1993, between 1 August 1993 and 30 September 1993, and between 1 September 1993 and 30 November 1993.
4. The other charge (count 4) was of aggravated sexual intercourse with a child under 16. It was in the following terms:
That you between the 1st day of September 1993 and the 30th day of September 1993 at Nowra in the State of New South Wales did have sexual intercourse with [the complainant] a person over the age of 14 years and under the age of 16 years, to wit aged 15 years in circumstances of aggravation to wit, at the time of the offence [the complainant] was under the authority of William Kamm.
5. The appellant pleaded not guilty to all charges, and was tried before Williams DCJ and a jury of twelve.
6. On 29 June 2005, the ninth day of the trial, it was noted that the appellant had been charged in count 4 in terms of s.66C(4) of the Crimes Act 1900, which did not exist in 1993. What did exist in 1993 was a similar offence under s.66(1) and (2) of the Crimes Act, the difference being that the range of ages under those provisions was 10 to 16 rather than 14 to 16. Over objection by the appellant’s Counsel, a charge was read to the appellant in the following terms, and the appellant was required to enter a plea in respect of it:
That you between the 1st September 1993 and the 30th September 1993 at Nowra in the State of New South Wales did have sexual intercourse with [the complainant] a person over the age of ten years and under the age of sixteen years, to wit aged fifteen years, in circumstances of aggravation to wit at the time of the offence [the complainant] was under the authority of William Kamm.
7. The appellant then pleaded not guilty to that charge. Thereafter, that charge was treated as count 4.
8. On 8 July 2005, the jury returned a verdict of guilty on all counts.
26. The appellant’s appeal against conviction is on the following grounds:
The learned trial judge erred in permitting the Crown Prosecutor to amend the indictment, following the close of the Crown case and during the presentation of evidence for the defence, by changing the terms of count four on the indictment, in such a manner that it required the applicant to be re-arraigned in relation to that count alone.
The trial proceedings on count four were a nullity in that, following the re-arraignment of the appellant on that count, he was never put in charge of the jury, nor were the jury ever properly sworn by being required to take an oath to bring in a verdict according to the evidence on that count.
31. Mr. Byrne SC for the appellant submitted that the jury had been sworn to try the appellant on the charge contained in the original count 4; that the appellant had been re-arraigned on the amended charge and pleaded not guilty to that charge; that accordingly, it was necessary that he then be placed in charge of the jury and that the jury be sworn to try him on that amended charge; and that since this had not happened, the trial process was flawed in a fundamental respect. He relied on Maher v. The Queen  HCA 31; (1987) 163 CLR 221 and Katsuno v. The Queen  HCA 50; (1999) 199 CLR 40.
36. In my opinion, there is a real question whether any amendment was necessary in this case. The issues joined on the charge as framed, if found by the jury against the appellant, were sufficient to establish the guilt of the appellant of an offence as existing at the time of its commission. The age of the complainant was charged at 15, and that was within the relevant range specified for the offence as it was at the time of the events in question, as well as within the range for the offence as originally charged: cf. R v. MAJW  NSWCCA 145 at .
37. Mr. Byrne accepted that the indictment could have been amended pursuant to ss.20-22 of the Criminal Procedure Act, and the trial could then have proceeded without the appellant being re-arraigned. That concession is plainly correct: s.22 is in similar terms to s.572 of the Queensland Act, referred to in Maher; and the plea of not guilty to the original charge could be taken as a plea of not guilty to the amended charge: see R v. Ayles  SASC 82.
38. However, in my opinion there was nothing untoward in having the amended charge read out and taking a plea to it. I note that s.21 of the Criminal Procedure Act contemplates the addition of counts by amendment, and provides that an order for amendment may be made at any time during the trial. If additional counts are added during a trial, it seems reasonable that these counts should be read out and a plea taken: cf. Ayles at . I note that, even when a trial is postponed following the addition of counts by amendment, s.21(5) does not require re-commencement of a trial if a jury has not been discharged.
39. The High Court in Maher held that the jury in that case had been sworn only to give a verdict on issues already raised. That point does not apply to this case, because even in a case where an amendment adds new counts, s.22(1) of the Criminal Procedure Act still applies. There is in my opinion no reason why an oath or affirmation under s.72A of the Jury Act should not apply to issues arising under the indictment as amended.
40. In the present case, no new counts were added, and the amended count was not different in any material respect from the original count; so the position is even clearer. Whether or not what occurred is correctly described as re-arraignment, it did not take the case out of the regime prescribed by ss.20-22 of the Criminal Procedure Act.
41. Even if there had been a procedural irregularity in this case, it would in my opinion have been immaterial: cf. Mackay v. The Queen  HCA 22; (1977) 136 CLR 465. However, for the reasons I have given, I do not consider there was any irregularity.
1. I agree with Fullerton J
2. I agree with Fullerton J
3. On 11 December 2009 the appellant was convicted after trial of four counts of sexual intercourse with a child (LP) under the age of 10 years and three counts of indecent assault of the same child. He was sentenced to imprisonment for 8 years with a non-parole period of 5 years and 6 months. He appeals his conviction on all counts. There is no application for leave to appeal against sentence.
5. The charges relate to two discrete occasions whilst the complainant was being cared for at a childcare facility operated by the appellant's mother from her home in Moree. As originally particularised, counts 1 to 4 (two counts of sexual intercourse and two counts of indecent assault) were committed on one afternoon between 25 December 1995 and 16 March 1996 when the complainant was 3 years of age and counts 4 to 7 (two counts of sexual intercourse and one count of indecent assault) were committed on another afternoon between 1 June 1997 and 31 December 1998 when she was between 5 and 6 years of age. After amendment the timeframe within which counts 1 to 4 were committed was extended to between 16 March 1996 and 1 December 1997 when the complainant was aged 3 and 5 years.
6. The appellant filed seven grounds of appeal. At the hearing of the appeal he relied only on the first and sixth grounds. The first ground contended that each of the verdicts is unreasonable and cannot be supported on the evidence as provided for in s 6(1) of the Criminal Appeal Act 1912. The sixth ground contended that the trial judge erroneously granted leave to the Crown to amend counts 1, 2, 3 and 4 to enlarge the timeframe within which the offences were allegedly committed.
56. The application to amend counts 1 to 4 to extend the timeframe within which the assaults were alleged to have taken place from 11 weeks between 25 December 1995 and 16 March 1996 when the complainant was aged 3 years, to 19 months between 16 March 1996 to 1 December 1997 when she was aged 3-5 years was made on the basis of the complainant's acceptance of the proposition put to her in cross-examination that the appellant's family had not moved to the blue and white house until December 1996 and that they stayed there until November 1997, and her acceptance of what the trial judge then put to her, namely that she could be mistaken as to her age at the time of the first incident. The application to amend the indictment was made at the end of the Crown case. It is not clear why the Crown did not make the application after the complainant had given her evidence, thereby giving the appellant's counsel an opportunity, at that time, to have the witness recalled to address the change in the particulars of the charge. That said, defence counsel did not apply to have the witness recalled. He submitted that the prejudice to the accused could not be addressed or cured by further questioning.
64. In this case, where the appellant's case was that he did not assault the complainant at any time when she was in his mother's care, and that he did not have an opportunity to do so because he was rarely alone with the children and, more specifically, with individual children, irrespective of what premises they were living in at the time, I am unable to see how the cross-examination of the complainant might have been significantly different had the indictment been amended at an earlier point in the trial. It is also of significance, as I see it, that no application was made to have the complainant recalled before the Crown formally closed its case. The amendment was made before the appellant was called to give evidence where an opportunity was afforded him to deal with the extended timeframe for counts 1 to 4.
65. I am not persuaded that there was any miscarriage of justice resulting from the amendment of the indictment, even at a late stage in the trial. Ground 6 of the appeal should be rejected.