Defects & Variances Flashcards
What section of what act allows police to amend an indictment in court? What must prosecutors do to effect this?
S20 of the Criminal Procedure Act
Seek Leave of the court OR
With consent of the accused
When is an indictment under S16 of the Criminal Procedure Act not bad, insufficient, erroneous or defective?
Includes words no longer used
Includes things need not be proven
Includes incorrect location (unless essential)
Includes incorrect time/date (unless essential)
Includes incorrect name
When can an indictment not be amended as per S21 of the Criminal Procedure Act?
If in regards to the case, it cannot be done without injustice.
What is a defect?
Can apply to both substance and form.
Can mean error, omission, imperfection, fault or insufficiency.
What is a variance?
Only applies to substance.
A variation between the substance and the evidence.
What is the correct process if a charge sheet does not disclose the offence?
If within the statue of limitations, substitute it for a fresh charge.
What is a form?
The part of the document that contains the procedural formalities.
What is substance?
The part of the document that sets out the allegation.
What section of what act allows the court to adjourn proceedings to fix a defect/variance?
Section 40(4) of the Criminal Procedure Act.
What is the relevant case law regarding R v STRINGER [2000] concerning time?
When an act is criminal only when done within a certain time.
When it is an essential ingredient of an offence that certain consequences should follow.
When it is an essential ingredient of an offence committed between certain hours of day or night.
When a particular offence must commence within a certain time.
