Indictment

In R v Darko Janceski [2005] NSWCCA 281 it was said that the presentation of the indictment is “the most fundamental of the procedures that attend a criminal trial for an indictable offence”.

The indictment is the formal document that described the charge to be pressed against the accused. In R v Darko Janceski [2005] NSWCCA 281 it was said that the presentation of the indictment is “the most fundamental of the procedures that attend a criminal trial for an indictable offence”.

The law requires that an indictment set out each of the elements of the offence charged, such that the Defendant understands what is alleged and then is able to answer the charge. It is on a reading of the indictment that the accused is arraigned.

The technical requirements relating to the signing of the indictment are set out in Division 2 of Part 3 of the Criminal Procedure Act 1986. Those technical requirements have to precisely followed, and the authorities are clear that a defect in the indictment will be a “fundamental irregularity” in the conduct of the trial.

In most cases, the dates specified on the indictment are not important. However, there are occasions when the time can be of the essence, such as where the offence did not exist or was not capable of being committed before or after the dates, or where the dates become essential as a result of the forensic issues that emerge during the trial

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Kingswell

Kingswell v R [1985] HCA 72

“There is a close analogy between those cases in which the existence of the circumstances of aggravation converts the offence from a lesser to a greater one and those in which the existence of the circumstances of aggravation renders the accused liable to a penalty greater than that which could have been imposed if the circumstances did not exist. In cases of the first-mentioned kind, the circumstances of aggravation become elements of a distinct offence and therefore must be specifically alleged in the indictment. Where the circumstances of aggravation do no more than increase the maximum penalty, they do not alter the nature of the charge although they do affect, sometimes very materially, the legal consequences that may flow from a conviction.”