6 Indictment, pleas and crown court preliminaries

Question 1

What is an indictment?

Answer 1

Document produced by prosecution for the crown court containing all charges faced by D.

Question 2

When indictment will come into existence?

Answer 2

1. D being sent to Crown Court for trial
2. Preferment of a voluntary bill of indictment?
3. Court of Appeal ordering a retrial

Question 3

What is it called before the indictment is served?

Answer 3

Bill of indictment

Question 4

What’s the another word used for serving the bill of indictment?

Answer 4

Preferment

Question 5

Can the prosecution amend indictment?

Answer 5

They can amend it without permission of court before it is served. However, if it’s already served, the prosecution need court’s permission.

Question 6

What is arraignment?

Answer 6

When the indictment is read to D by the clerk and he enters his plea to counts.

Question 7

1. How does the draft indictment produced in Magistrates?
2. What happens to that?
3. When this draft indictment is served?
4. When can prosecution amend the draft indictment?

Answer 7

1.It will be electronically generated.
2. It will be send to Crown Court.
3. It will be served immediately before the arraignment.
4. Anytime before the arraignment.W

Question 8

1. What is the draft indictment is not electronically generated?
2. When is it served?

Answer 8

1. The prosecutor will draft the indictment.
2. When it is uploaded to Digital Case Management System.

Question 9

What must be D and court be served when D is sent for trial?

Answer 9

The indictment and prosecution evidence

Question 10

When will the electronic draft indictment is sent to D?

Answer 10

When it is send to Crown Court, is it also served to D.

Question 11

There are certain time rules applies as to when the draft indictment must be served. To what kind of draft does this apply to?

Answer 11

It only applies to indictments that is not electronically generated at magistrates. The one that must be drafted by the prosecution.

Question 12

How long must be the magistrate hearing and and the plea trial preparation hearing at Crown Court?

When must the draft indictment must be served to D?

Answer 12

28 days.

At least 7 days before plea trial preparation hearing.

Question 13

What counts can be included in the original draft of indictment?

Answer 13

Any charge that can be made our from prosecution evidence. If the evidence also gives rise to a minor offence in addition to main offence, then can put it ‘in substitution’.

Question 14

In addition to substitution counts, what can the prosecution do?

Answer 14

Include alternative counts

Question 15

What is included in the indictment?

Answer 15

1. Statement of offence
2. Particulars of offence

Question 16

Is there a need to differentiate principal and secondary offender in the indictment?

Answer 16

No

Question 17

Drafting dates

Answer 17

Exact dates. And it’s unknown approximate ‘on or about …’. Or say ‘on a date unknown before …’. Can put timeframe too but remember to include the day it too.

Question 18

What are the three exceptions when more than offences can be in one count?

Answer 18

1. Continuous offence (ie conspiracy)
2. Course of conduct (ie shoplifting too many things once or rape)

Question 19

What are the requirements for course of conduct exception under rules against duplicity?

Answer 19

1. Must be same victim or no victim
2. Must be under a year
3. Must have degree of repetition
4. Defence in each offence must be the same

Question 20

When sample counts used?
What happens to other offences?

Answer 20

1. When there are too many counts.
2. When D pleads guilty.
3. D will agree for them to take into consideration.
4. Court must need D’s permission for TIC.

Question 21

When counts can be joined?

Answer 21

1. Founded on the same facts
2. Part of same serious of offences

Question 22

When it is founded on the same facts?

Answer 22

When the second offence would not have happened unless the offence before, even if weeks apart.

Question 23

What’s the requirement for series of offences of same or similar character?

Answer 23

Doesn’t have to be exact type.
Must be legally or factually similar.

Question 24

When can accused be tried on same indictment?

Answer 24

1. Jointly charged
2. Similar facts
3. Related by time or interest of justice served best with single trial

Question 25

What powers the courts have for multiple counts and Ds in single indictment?

Answer 25

Power of severance

Question 26

When judge may sever counts into separate trials? Instead of severing, what the judge can do?

Answer 26

When it would be prejudicial to D. The judge can give special directions to the jury.

Question 27

Are cut throat defences good reason to sever joint trials?

Answer 27

No

Question 28

If there's an evidence admissible against one D but not another, still good reason to server trial?

Answer 28

No can give directions to jury

Question 29

What is the test for amendment in addition to permission from judge? What must be seen here?

Answer 29

If it causes injustice to P. Did D have enough time to prepare his case?

Question 30

When is the latest indictment can be amended?

Answer 30

Before verdict is returned. So even when the jury retired to consider verdict, still can.

Question 31

What summary offences can be added as a count at Crown Court?

Answer 31

Common assault Taking motor vehicle without consent Driving whist disqualified Criminal damage under 5000 Offences that are punishable with disqualification from driving or imprisonment.

Question 32

What is summary offence not added as count?

Answer 32

If G at CC, court ask how he pleads. If G, court will sentence him. If NG, then sent to Magistrates. If NG at CC, court will sent to Magistrate.

Question 33

Can you include in the indictment summary offences that are under s40 but it's not send to trial?

Answer 33

Can. It is same as indictable offences which were not send to trial too.

Question 34

Who will decide if D is fit to plea? How the judge will decide?

Answer 34

The judge. Two registered medical practitioners and at least one must be State registered

Question 35

What is D is unfit to plea?

Answer 35

Court see if actus reus is satisfied

Question 36

What sentence court can impose when D is unfit to plea?

Answer 36

Hospital order Supervision order Absolute discharge

Question 37

What happens to alternative count when D pleads guilty to more serious one? What if prosecution doesn't accept the G plea to alternative offence?

Answer 37

The alternative count won't be read out. D will be tried for more serious offence, and if convicted, D will only be convicted for the serious offence.

Question 38

Can D plead G for lesser offence even when there is no alternative offence? If prosecution agree to that, must the judge accept it?

Answer 38

Yes D can do that. No judge can reject it here.

Question 39

If D pleads NG, what can prosecution do other than trial?

Answer 39

If insuffient evidence > offer no evidence If not in public interest to have trial > ask the count to lie on file forever. Later resume with the leave of court.

Question 40

What is the latest time judge can allow D to change his plea from NG to G? What happens next? Can do from G to NG?

Answer 40

Anytime before judge returns the verdict. Judge will ask the indictment put to D again and D will plead guilty. Can but judge will be more reluctant and will look at circumstances around his plea.