6: Indictment

Question 1

What is an Indictment?

Answer 1

= sets out charge in CC

Question 2

. Served indictment is:

Answer 2

‘the indictment’ without being signed.

Question 3

What is the normal form of an indictment?

Answer 3

Norm: electronic draft indictment when case sent. When uploaded to digital system = “preferred”.

Question 4

What should a draft indictment do?:

Answer 4

should = served on court +endorsed by court officer + date of receipt added

Question 5

Draft indict should = served on court +endorsed by court officer + date of receipt added. FAILURE?

Answer 5

Not impugn validity of electronically served indictment.

Question 6

Who must endorse an electronically served indictment?

Answer 6

NO-ONE

ONLY PAPER COPY MUST BE

CC officer MUST endorse, unless directs otherwise.

Question 7

Who has ultimate responsibility of the indictment?

Answer 7

the prosecution

Question 8

Time limit for indict =

Answer 8

28 days on which:

1. Copies of doc served where person sent for trial;
2. HC judge consented to preferment

QUICKER THAAN 28 dys if pros include counts differing to original D was sent.

7 days before PTPH

Question 9

How many days before the PTPH must the indictment be served?

Answer 9

7 days before PTPH

Question 10

hOW MANY DAYS BEFORE THE case is sent to CC does th PTPH take place?

Answer 10

PTPH takes place 28 dys before case sent to CC. CC can extend time, even after expired.

Question 11

LAYOUT of INDICT:

Answer 11

• Each offence charged set out in separate para.
• Each count divided into statement of offence and particulars.

Question 12

What is

Statement of offence?

Answer 12

describes offence in ordinary language + identifies legislation.

Question 13

What is

Particulars of offence

Answer 13

factual information + MUST disclose essential elements of offence.

Question 14

COMPONENTS OF PARTICULARS

Answer 14

1. Date

Count should state date offence occurred. If unknown = reasonable approximation. CANNOT have offence occur more than one day, EXCEPT: If continuous offence, e.g. conspiracy

1. No Duplicity

Rule against duplicity = each may allege only one offence

1. Severance

Judge MAY sever counts even without valid indict. Indict improperly joined is NOT nullity.

Court officer MUST endorse indict with note identifying copy of indict and date.

Question 15

Court MAY order separate trial, unless offences: (DISCRETION – no duty)

Answer 15

1. Are founded on same facts; or
2. Form parties of offences of same or similar character

Question 16

Founded on same facts TEST=

Answer 16

if charges have common factual origin

Question 17

Series of offences same/similar chara = look @ legal/factual chara. TEST

Answer 17

some nexus between them.

Question 18

When may there be a joiner of D?

Answer 18

Two or more D MAY be joined if named together. All D’s to joint offence = no need distinguish principle/secondary parties. No need express acts done in aid = implicit. If pros wish join accused, Consideration if D substantially adversely affected to be abuse of process.

Question 19

When may there be severance on indictment?

Answer 19

Court MAY separate trial properly joined.

After severance, court MAY postpone trial if necessary + expedient. Procedure as if separate indictment. Severance is discretion = unlikely successful ground of appeal.

Question 20

When is there a presumption in favour of joint trial?

Answer 20

Where pros case against accused (A1) includes admissible evidence against him but not (A2), no obligation to order severance.

There is a presumption in favour of joint trial.

Question 21

Amending indictment = Where:

1. Indictment defective

Court MUST:

Answer 21

make order for amendment unless it would be unjust.

Question 22

SPECIMEN/SAMPLE COUNTS =

Answer 22

Samples of continuing course of conduct.

Question 23

SPECIMEN/SAMPLE COUNTS = Samples of continuing course of conduct.

Procedure

Answer 23

1. D provided with list similar offences
2. Evidence
3. Additional offence not be referred until guilty verdict.

Question 24

Where indictment charges more one offence, court may order separate trials if:

Answer 24

1. D prejudiced or embarrassed; or
2. Desirable.

Question 25

Amending indictment

Amendment by new Count = ?

Answer 25

YES- if after arraignment, MUST put new counts to accused. Amendment CAN made after close pros case.

Question 26

Amending indictment

Evidential basis new count =

Answer 26

Not necessary to be founded on material disclosed. Question: if D will be unfairly prejudiced.

Question 27

Timing amendment ? when can it be done?

Answer 27

Any stage, even where jury have gone into retirement.

Question 28

What is a

VOLUNTARY BILLS OF INDICTMENT ?

Answer 28

Seeking order from HC that D stand trial in CC for offence. E.G. where proceedings reinstated where charge dismissed, but fresh evidence in light. Voluntary bills of indictment = exceptional and used only where “good reason” to depart from norm procedure, only in interest of justice.

Question 29

Where mags sent D to CC for trial and draft indict is not generated electronically on sending for trial, pros must serve draft indict on CC not more than

Answer 29

28 days after serving copies.

Question 30

Where draft indictment served by pros on re-instituting proceeding, must serve not more than

Answer 30

3 moths after proceedings stayed.

Question 31

Must you sign the indictment?

Answer 31

NO requirements for signature for indictment, but MUST be endorsed with note to identify it and date.

Question 32

How many indictments can exist at one time?

Answer 32

Two indictments can exist at same time for same offence on same facts. But they cannot proceed on both or be tried together, MUST elect one.

If indictment is defective so struck out, counsel can go to HC and HC can issue voluntary bill of indictment.

Question 33

Who can be joined in an indictment

joinder of accused:

Answer 33

2 or more D’s MAY be joined in 1 indictment either by named all together or named individually in separate counts.

Question 34

JOINT COUNTS: All parties in joint offence MAY be indicted in single count, in drafting:

Answer 34

1. No need to distinguish principle + secondary parties
2. Count need NOT expressly alleged that unlawful acts of each were done in aid of others.

Pros needs to consider if D would be substantially adversely affected, so joinder would = abuse of process. No prohibition on addition of counts of indictment.

Pros should draft joint count where joint enterprise, if co-D act without ref to each other, separate courts are preferable.

Where joint count against 2 D, court MAY separate the counts.