Defects & Variances

Question 1

What is a defect?

Answer 1

An error, omission, imperfection, fault or insufficiency.

Question 2

What can a defect apply to?

Answer 2

Substance and Form

Question 3

What is a Variance?

Answer 3

A variation between the substance and the evidence.

Question 4

What does a variance apply to?

Answer 4

Substance only.

Question 5

What is substance?

Answer 5

The part of the document that sets out the allegation (indictment)

Question 6

What is form?

Answer 6

The part of the document that contains procedural formalities as set out in s 175.

Question 7

What does s 11 allow as a description of the offence?

Answer 7

The short wording of the offence, can be in the words of the Act or statutory rule will be sufficient at Law.

Question 8

What kind of defects do not affect the indictment?

Answer 8

An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds:

• includes words no longer used
• includes things need not be proven
• includes location unless essential ingredient
• includes unknown co-acc
• includes incorrect value of property unless essential ingredient
• includes incorrect name
• includes incorrect time unless essential ingredient
• includes incorrect or non existent date

Question 9

What section states that certain defects do not affect the indictment?

Answer 9

S 16

Question 10

Can defence object to defects under s 16?

Answer 10

No

Question 11

What does s 40 allow?

Answer 11

Adjournments of criminal proceedings if the accused has been misled by the variance.

Question 12

What is discussed in Ex Parte Dunsmore (1908)

Answer 12

Where indictment alleges two offences, the Magistrate is not to dismiss but ask the prosecution to elect which one it is.

Question 13

In R v Stringer the question of when time is an essential ingredient is discussed. What are the 4 instances where it is an essential ingredient?

Answer 13

1. When an act is only criminal if done at a certain time.
2. When it is an essential ingredient of a particular offence that certain consequences should follow a particular act - breach avo 12 hours drinking
3. That it is essential ingredient that the offence was committed between certain hours.
4. Statute of limitations

Question 14

Can the incorrect weight of a drug be cured?

Answer 14

Yes - Boujaoude v R 2008 NSWCCA

Question 15

When can an indictment be amended under s 20?

Answer 15

With the leave of the court or with consent of the accused who must be present.

Question 16

Can a magistrate after considering the defect and having regard to the merits of the case, amend without injustice and indictment?

Answer 16

Yes - s 21

Question 17

What does R v Lister (1955) state?

Answer 17

That the wrong name of the defendant doesn’t matter if the defendant is in Court. The name of the defendant may be incorrect but not the identity of the defendant.

Question 18

What are some examples of defects in Form?

Answer 18

Error shown of date information laid
Incorrect name shown as informant
Incorrect act or section show on information
Wrong name of defendant

Question 19

Examples of defects in substance:

Answer 19

No date of offence shown

Duplicity

Question 20

Examples of variance in substance

Answer 20

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

Question 21

What act allows for defects and variances to be amended?

Answer 21

Criminal Procedure Act 1986