Amending the indictment

“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.”

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 [2005] 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 [2005] 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 [2011] NSWCCA 262).

Maher

Maher v R [1987] 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.”