Indictment
Criminal Code 564 Form of indictment(1) An indictment ... must [usually] set forth the offence with which the accused person is charged in such a manner, and with such particulars as to the alleged time and place of committing the offence, and as to the person (if any) alleged to be aggrieved, and as to the property (if any) in question, as may be necessary to inform the accused person of the nature of the charge.
(2) If any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment. (3) It is sufficient to describe an offence in the words of this Code or of the statute defining it. (4) ... |
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Number of Charges/Counts
Each indictment should generally only have one COUNT (or one charge) against an accused (s 567(1)) EXCEPT:
1. s 567(2) joinder is permitted if:-
* The charges are based on the same facts (i.e. they have a common factual origin or are traceable in time/place/circumstance to a common offence (Collins v R [1996] 1 Qd R 631); or
* Are or form part of a series of offences of a similar character or committed in the prosecution of a single purpose (see R v Cogley [1999] VSCA 123 per Buchanan JA "to be a series of offences or of a similar character, there must be some nexus between the offences, that is, elements of similarity which in all the circumstances of the case enable the offences to be described as a series."
'Matters which can be joined without prejudice to the accused ought generally to be' Collins v R [1996] 1 Qd R 631.
2. Where the charges are charged 'in the alternative'
'In many instances, where the elements of offences substantially overlap (although they may not be identical) sound prosecutorial practice will result in charges being expressed in the alternative' (per Kirby J in Pearce v R (1998) HCA 57 at [96]. Note the effect of charging in the alternative is that the accused can only be found guilty of either one or the other offence (not both). See the direction as to alternative charges #33 in the Supreme and District Court Judges Benchbook.
3. Where there are specific property offences related to the same criminality. Note that under this section it is possible that one charge/count may relate to a number of separate incidents (s 568).
Number of accused
An indictment may combine charges against multiple accused if charged with the same offence (even if committed at different times) or charged with being an accessory after the fact to the same offence (s 568(11)) or charged with committing different/separate offences arising out of the same/closely related set of facts (s 568(12)).
Each indictment should generally only have one COUNT (or one charge) against an accused (s 567(1)) EXCEPT:
1. s 567(2) joinder is permitted if:-
* The charges are based on the same facts (i.e. they have a common factual origin or are traceable in time/place/circumstance to a common offence (Collins v R [1996] 1 Qd R 631); or
* Are or form part of a series of offences of a similar character or committed in the prosecution of a single purpose (see R v Cogley [1999] VSCA 123 per Buchanan JA "to be a series of offences or of a similar character, there must be some nexus between the offences, that is, elements of similarity which in all the circumstances of the case enable the offences to be described as a series."
'Matters which can be joined without prejudice to the accused ought generally to be' Collins v R [1996] 1 Qd R 631.
2. Where the charges are charged 'in the alternative'
'In many instances, where the elements of offences substantially overlap (although they may not be identical) sound prosecutorial practice will result in charges being expressed in the alternative' (per Kirby J in Pearce v R (1998) HCA 57 at [96]. Note the effect of charging in the alternative is that the accused can only be found guilty of either one or the other offence (not both). See the direction as to alternative charges #33 in the Supreme and District Court Judges Benchbook.
3. Where there are specific property offences related to the same criminality. Note that under this section it is possible that one charge/count may relate to a number of separate incidents (s 568).
Number of accused
An indictment may combine charges against multiple accused if charged with the same offence (even if committed at different times) or charged with being an accessory after the fact to the same offence (s 568(11)) or charged with committing different/separate offences arising out of the same/closely related set of facts (s 568(12)).
Withdrawing an Indictment
To drop a charge the prosecution in the higher courts enter a nolle prosequi. This must be done in writing (s 563). In the lower Courts the police indicate they have 'no evidence to offer'.
The consequence of such a withdrawal is that the accused is discharged (not acquitted) and so no allegations can be brought of 'double jeopardy' if later charged again.
However, a nolle prosequi may be refused if it may result in an abuse of process.
'The entry of a nolle prosequi at the final stage of a trial is effectively an abortion of that trial and a unilateral preservation of right by one party - the Crown...The power of the Court to prevent this happening when it is plainly intended as a means of enlivening a dead prosecution, and where the further prosecution must be regarded as an oppressive abuse, is simply an aspect of the court's duty to control its own process and to ensure that the accused receives a fair trial...Generally speaking, a trial judge ought not to prevent the entry of a nolle prosequi at any stage of the trial unless its entry is plainly a vehicle of extreme oppression.' Jell (1990) 46 A Crim R 261.
See, also, Lorkin (1995) 82 A Crim R 196.
The consequence of such a withdrawal is that the accused is discharged (not acquitted) and so no allegations can be brought of 'double jeopardy' if later charged again.
However, a nolle prosequi may be refused if it may result in an abuse of process.
'The entry of a nolle prosequi at the final stage of a trial is effectively an abortion of that trial and a unilateral preservation of right by one party - the Crown...The power of the Court to prevent this happening when it is plainly intended as a means of enlivening a dead prosecution, and where the further prosecution must be regarded as an oppressive abuse, is simply an aspect of the court's duty to control its own process and to ensure that the accused receives a fair trial...Generally speaking, a trial judge ought not to prevent the entry of a nolle prosequi at any stage of the trial unless its entry is plainly a vehicle of extreme oppression.' Jell (1990) 46 A Crim R 261.
See, also, Lorkin (1995) 82 A Crim R 196.