Defects & Variances Flashcards
What is Lineham v Aust Public Assoc
- An information that fails to allege an offence is not curable.
“The proceedings will be dismissed if the information upon which the summons was issued failed to disclose an offence at all because some material allegation was omitted and the time within which a prosecution may be commenced has expired
Substance v Form
- Substance: that part of the document that sets out the alleviation (I.e. the indictment, what we input into the CAN, the info on the charge).
- Form: the part of the document that contains the procedural formalities.
What is section 16?
Certain Defects do not affect indictment (this section identifies that the below errors listed in the section do not make the CAN invalid
What errors do not make a CAN invalid?
An indictment is not bad, insufficient, void, erroneous or defective if on the following grounds:
- improper insertion or omission of the words
- an a Vermont of any matter unnecessary to be proved
- proper or perfect venue
- Stateent of the value or price of any matter or thing
Section 16 (2):
No objection may be taken, or allowed, to any indictment by which criminal proceedings in the LC for the purposes of any such proceedings on the grounds of:
- any alleged defect in it in substance or in form
- any variance between it and the evidence adduced at the proceedings
What is a defect?
Can apply to both the “substance” and the “form”, Means a variation between the substance and insufficiency.
What is the term Variance?
The term variance only applies to the “substance”. Means a variation between the substance and the evidence.
An application under s16 can be given any time right up until the magistrate gives their “finding”.
What are the remedies to fix a duplicity?
If there are TWO separate offences, then amend current indictment and add another sequence with the different indictment.
E.g. resists or hinders or incites any person…..
He’d berg v Woodwall
The proper course for a magistrate to adopt when an information is shown to contain more than one offence is to recharge the defendant with one or both charges, or put the prosecutor in his election.
Ex Parte Dunsmore
Where indictment alleges two offence, the Magistrate is not to dismiss the information, but put the prosecutor to his election, and “court can adjourn the case if the defendant has been misled”.
Variance in Substance
A variance points to some difference between the allegation and the evidence, not to a different offence (Martin v Pridgeon).
E.g of Variance: Time and Name of Drug
Time in Variance: 4 Situations (R v Stringer)
The question of when time was an essential ingredient was considered… “time has been stated to be of the the essence in four situations, namely:”
- When an act is criminal only when done within a certain time of some other act or event;
- When it is an essential ingredient of a particular offence that certain consequences should follow a particular act.
- … that the act alleged was committed between certain hours of the day or night; and
- When the prosecution for a particular offence must be commenced within a certain time of the commission of the criminal act alleged.
Camilleri v Wilkinson
“The trust test it that so long as the core offence remains untouched an amendment can be made to a particular so long as by doing so the defendant is not prejudiced in his defence… I regard the name of the drug as a particular.
Boujaoude v R
- goes further than Camilleri:
- essentially the name is a particular that can be varied without unjust to the Defendant
Section 20: Amendment of indictment
(1) An indictment may not be amended after it is presented, except by the prosecutor -
(A) with the leave of the court, or
(B) with the consent of the accused
