R v Foster; R v Foster; R v Regan [2023] NSWDC 549

R v Foster; R v Foster; R v Regan [2023] NSWDC 549

Section 80AF of the Crimes Act 1900 (NSW) may not be relied upon by the Crown to amend an indictment after the trial has commenced; however, leave to amend the indictment pursuant to section 20 of the Criminal Procedure Act 1986 (NSW) is appropriate where the amendments reflect an expanded date range traversing legislative changes, as there is no injustice to the accused and the essential elements of the offences remain the same throughout.

Jurisdiction
Australia
Judgment Date
08 December 2023
Procedural Posture
Criminal / Interlocutory (application to Amend Indictment After Close of Crown Case in Judge Alone Trial)
Outcome
Application to amend the indictment under section 80AF refused; Application to amend under section 20 of the Criminal Procedure Act 1986 (NSW) granted
Legal Topics
['co Accused' 'historical Sexual Assault' 'amendment of Indictment' 'section 80 AF Crimes Act 1900 (nsw)' 'ex Officio Indictment' 'ratio Decidendi' 'retroactive Legislation' 'criminal Procedure Act 1986 (nsw) Section 20']
['criminal Law'] ['co Accused' 'historical Sexual Assault' 'amendment of Indictment' 'section 80 AF Crimes Act 1900 (nsw)' 'ex Officio Indictment' 'ratio Decidendi' 'retroactive Legislation' 'criminal Procedure Act 1986 (nsw) Section 20']

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Procedural Posture

Criminal / Interlocutory (application to Amend Indictment After Close of Crown Case in Judge Alone Trial)

Legal Issues

  1. 1 ['Whether the Crown can rely on section 80AF of the Crimes Act 1900 (NSW) to amend the indictment after commencement of the trial' 'Whether MJ v R [2013] NSWCCA 250 permits amendment of the indictment to traverse legislative changes' 'Whether injustice would arise from granting leave to amend the indictment at a late trial stage']

Ratio Decidendi

Section 80AF of the Crimes Act 1900 (NSW) may not be relied upon by the Crown to amend an indictment after the trial has commenced; however, leave to amend the indictment pursuant to section 20 of the Criminal Procedure Act 1986 (NSW) is appropriate where the amendments reflect an expanded date range traversing legislative changes, as there is no injustice to the accused and the essential elements of the offences remain the same throughout.

Court Disposition

Application to amend the indictment under section 80AF refused; Application to amend under section 20 of the Criminal Procedure Act 1986 (NSW) granted

Orders

  • ['Leave granted to Crown to amend the indictment to include further counts as set out in [41], [43], [46], [48], and [51] of the judgment']