Changing the charges during a trial

ajc100

During a case an accused is read the charges and asked to respond, guilty or not guilty.
If, for example, the charges relate to incidents occurring between 2 specific dates and during the trial it becomes obvious that the testimony being presented by the prosecution doesn't 'fit' them dates.
under what circumstance would it be ok to change the dates on the charges and re-arraign the accused?

conorh91

ajc100 wrote: »

If, for example, the charges relate to incidents occurring between 2 specific dates and during the trial it becomes obvious that the testimony being presented by the prosecution doesn't 'fit' them dates.
under what circumstance would it be ok to change the dates on the charges and re-arraign the accused?

A decision whether to amend or dismiss depends on "the extent or nature of the misleading prejudice or possible effect on the merits of the case set against the requirements of justice between the prosecution and the defendant" - per The State (Duggan) v Evans (1978) 112 I.L.T.R.

ajc100

But is it not akin to changing the goal posts after the match has started?

Would the defence not have put all there efforts into preparing for a trial on one thing for that work to be obsolete in a second?

Also, what were the prosecution doing bringing a case with such a glaring error to court in the first place? Is it not fair to say that they should have a fair idea what there witnesses are going to say before they enter the witness stand?

How often would this kind of thing happen?

conorh91

ajc100 wrote: »

But is it not akin to changing the goal posts after the match has started?

No. Unlike moving goalposts, it must be shown that no real disadvantage accrued to the Accused/Applicant by reason of these 'slips'.

People make slip-ups all the time, especially when dealing with potentially hundreds, or even thousands, of pages of documents.

Human error is a fact of life. Sometimes an error is so serious as to tilt the balance of fairness against an accused person. Sometimes an error makes no practical difference to an accused person at all.

Claw Hammer

Power of Court in cases of variance, defects, omissions, no offence disclosed or no appearance
Order 38 District Court Rules.

Variance between evidence and complaint
1. (1) Subject to the provisions of paragraph (3) hereof, in cases of summary jurisdiction no variance between the complaint and the evidence adduced in support thereof, as to the time at which the offence or cause of complaint is stated to have been committed or to have arisen, shall be deemed material, provided that such information or complaint was in fact made within the time limited by law for making the same; nor shall any variance between the complaint and the evidence adduced in support thereof, as to the place in which the offence or cause of complaint is stated to have been committed or to have arisen, be deemed material, provided that the said offence or cause of complaint was committed or arose within the jurisdiction of the Judge by whom the case is being heard, or that, the accused resides or in the case of an offence was arrested within such jurisdiction. In any such case the Court may amend the summons, warrant or other document by which the proceedings were originated and proceed to hear and determine the matter.
Defects
(2) Subject to the provisions of paragraph (3) hereof, no objection shall be taken or allowed on the ground of a defect in substance or in form or an omission in the summons, warrant or other document by which the proceedings were originated, or of any variance between any such document and the evidence adduced on the part of the prosecutor at the hearing of the case in summary proceedings or at the examination of the witnesses during the preliminary examination of an indictable offence, but the Court may amend any such summons, warrant or other document, or proceed in the matter as though no such defect, omission or variance had existed.

Court’s discretion
(3) Provided, however, that if in the opinion of the Court the variance, defect or omission is one which has misled or prejudiced the accused or which might affect the merits of the case, it may refuse to make any such amendment and may dismiss the complaint either without prejudice to its being again made, or on the merits, as the Court thinks fit; or if it makes such amendment, it may upon such terms as it thinks fit adjourn the proceedings to any future day at the same time or at any other place.

Claw Hammer

Minor issues such as getting a date wrong or a location wrong often have no real bearing on the fairness of the trial. If it is alleged an incident occurred on X street and it was in fact on Y street around the corner the accused is at no disadvantage.

michael999999

Claw Hammer wrote: »

Minor issues such as getting a date wrong or a location wrong often have no real bearing on the fairness of the trial. If it is alleged an incident occurred on X street and it was in fact on Y street around the corner the accused is at no disadvantage.

How did the charges against Brian curtain get thrown out so?

234

michael999999 wrote: »

How did the charges against Brian curtain get thrown out so?

Search warrants concern a constitutional right: the inviolability of the dwelling. That said, since then the courts are more tolerant of small errors on search warrants e.g. getting the number of the house wrong.

michael999999

234 wrote: »

Search warrants concern a constitutional right: the inviolability of the dwelling. That said, since then the courts are more tolerant of small errors on search warrants e.g. getting the number of the house wrong.

So there more tolerant of 'mistakes' when it doesn't concern one of there own?

234

michael999999 wrote: »

So there more tolerant of 'mistakes' when it doesn't concern one of there own?

I have no idea where you got that statement, it has absolutely nothing to do with what I said.

I can't remember the exact details of what happened with Brian Curtin, but from memory there was some defect with the search warrant.

The courts have consistently applied a very high standard (since DPP v Kenny) when reviewing the admissibility of evidence that is obtained through the infringement of a constitutional right. Where a warrant is defective then there is an infringement of the inviolability of your dwelling, which is constitutionally protected. This standard applies to judges and others alike.

What I did say is that the courts have backed away in more recent years (nothing to do with Curtin) from an absolutely strict approach and have allowed evidence to be admitted where it was obtained after a search where there was a defect on the fact of a warrant (this is from memory so I'm sure a practitioner in this area will correct me if I'm wrong).

There is absolutely no similarity between a potential infringement of a constitutional right and an indictment listing the incorrect street corner on which the accused assaulted a victim.

Peregrinus

234 wrote: »

I have no idea where you got that statement, it has absolutely nothing to do with what I said.

I can't remember the exact details of what happened with Brian Curtin, but from memory there was some defect with the search warrant.

The warrant had expired before they executed it.

All search warrants are good for a limited time only. If this were not so, once the guards had ever got a search warrant for your home they could come back and search it again any time they liked for ever after, which would make a nonsense of the constitutional guarantee of privacy. Searching a home with an expired warrant is the same as searching it with no warrant at all; any evidence you gather will normally be inadmissible unless there is some factor, independent of the warrant, to justify the search.