Defects And Variances

Question 1

What does section 11 of the Criminal Procedure Act 1986 say about description of offences?

Answer 1

(1) The description of any offence in the words of an Act or statutory rule or other document creating the offence or in similar words, is sufficient in law.

Question 2

Which section outlines what defects do not affect the indictment and what are they?

Answer 2

Section 16 Criminal Procedure Act 1986

(1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds:
(a) Words no longer used.
(b) Includes things need not be proven.
(c) Includes incorrect location unless essential ingredient.
(d) Includes unknown co-accused.
(e) Includes incorrect value or excludes value unless essential ingredient.
(f) Includes incorrect name.
(g) Includes incorrect time unless it is essential ingredient.

Question 3

What does section 16 (2) of the Criminal Procedure Act 1986 say about defects?

Answer 3

(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in a Local Court or for any other offence that is to be dealt with summarily are commenced. (Defence cannot object, however prosecution should formally amend).

Question 4

What section of the Criminal Procedure Act 1986 allows for adjournments in proceedings generally?

Answer 4

Section 40 of the Criminal Procedure Act 1986
(1) A court may at any stage of criminal proceedings adjourn the proceedings generally, or to a specific day, if it appears to the court necessary or advisable to do so.

Question 5

What is a Defect and what does it apply to?

Answer 5

Defects apply to both the substance and the form.

Can mean error, omission, imperfection, fault or insufficiency.

Question 6

What is a Variance and what does it apply to?

Answer 6

Variances apply to the substance only.

Variances are differences between the substance and the evidence.

Question 7

In defects and variances, what does the Substance refer to?

Answer 7

The substance is the part of the document that sets out the allegation. (ie the indictment).

Question 8

In defects and variances, what does the Form refer to?

Answer 8

The form is the part of the document that contains the procedural requirements set out in:
S.175 Criminal Procedure Act 1986 - Summary
S.50 Criminal Procedure Act 1986 - Indictable
Rule 3.11 Local Court Rules 2009.
ie, description of offence, name of prosecutor, location of offence.

Question 9

What does R V Stinger (2000) say about consideration of when time was an essential ingredient, name 4?

Answer 9

(1) An act is only criminal when done within a certain time of some other act or event (ie No parking between certain times)
(2) When it is and essential ingredient of a particular offence that certain consequences should follow a particular act (ie, breach AVO)
(3) When it is an essential ingredient of a particular offence that the act alleged was committed between certain hours of the day or night. (ie camping)
(4) When the prosecution for a particular offence must be commenced within a certain time of the commission o f the criminal act (Statute of Limitation)

Question 10

What does Lineham V APA say about an Indictment?

Answer 10

Indictment must disclose an offence and failure to do so is not curable. (If no offence is disclosed, must lay new sequence, or if outside statute of limitation there is no cure).

Question 11

What does Section 20 of the Criminal Procedure Act 1986 say about amendments?

Answer 11

(1) An indictment may not be amended after it is presented, except by the prosecutor:
(a) with leave of the court or,
(b) with the consent of the accused. (must be present)

Question 12

What does Section 21 of the Criminal Procedure Act 1986 say about amendments?

Answer 12

(1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment.

Question 13

What does R V Lister (1955) say about the wrong name of the defendant?

Answer 13

It is immaterial that a false name and address given by him applied to an actual person. The summons was issued in accordance with the name used by him on that date. The name of defendant is incorrect, not the identity of the defendant.

Question 14

Which Case Law described that a false name given by the defendant is immaterial to the identity of the defendant if the summons was issued in accordance with the false name?

Answer 14

R V Lister (1955).

Question 15

Which Case Law describes the four instances where time is an essential ingredient ?

Answer 15

R v Stringer (2000)

Question 16

Name examples of defects in the Form?

Answer 16

Incorrect name of informant.
Incorrect act and/or section shown on information.
Incorrect name of defendant.
Error shown of date information was laid.

Question 17

Name examples of Defects in the Substance?

Answer 17

No date of offence shown.

Duplicity.

Question 18

Name examples of Variances in Substance?

Answer 18

Wrong date.
Wrong time.
Wrong place.
Wrong owner of property.
Wrong name of drug.

Question 19

What does section 40 (4) of the Criminal Procedure Act 1986 say about adjournments for an accused person?

Answer 19

(4) Without limiting subsection (1), a court may, at the request of an accused person, adjourn criminal proceedings if it appears to the court that a variance between any process or document by which the proceedings were commenced and the evidence adduced in respect of the offence charged in that process or document such that the accused person has been misled by the variance.

Question 20

What does Case Law Camilleri V Wilkinson ?

Answer 20

As long as the core offence does not change, an amendment can be made to a particular, so long as by doing so the defendant is not prejudiced. I regard the naming of the drug as a ‘particular’.

Question 21

What does Case Law R v Boujaoude (2008) say?

Answer 21

The indictment disclosed an offence known to law, so the weight alleged in the indictment was merely a particular.

Question 22

“The naming of the drug is merely a particular” was used by which Case Law

Answer 22

Camilleri v Wilkinson.

Question 23

“The weight alleged in the indictment was merely a particular” was used by which case law?

Answer 23

R v Boujaoude.

Question 24

If an indictment reads the accused has in his, “Possession or Control” or “Under the influence of drug or alcohol” this is called what? And what should be done to the indictment?

Answer 24

Duplicity.
The indictment should be amended to have one or the other, or if the defendant committed both offences, lay two sequences.

Question 25

What are the three sections that directly relate to defects and variance and the procedure for amendments?

Answer 25

Criminal Procedure Act 1986
S.16 (2) No Objection may be taken.
S.20 Seek leave by the court, or consent of accused.
S.21 Court may make an order for the amendment if it thinks necessary to meet the circumstances of the case, and can be made without injustice.