2.7 Indictments - procedure

Question 1

Where does arraignment take place?

Answer 1

At the PTPH

Question 2

What is arraignment?

Answer 2

The court clerk reads the charge to the defendant and the defendant is asked how she pleads.

Question 3

When does arraignment not happen?

Answer 3

Where D is mentally incapable, i.e., unfit to plead.

Question 4

What happens where D wants to plead guilty to a lesser alternative offence?

Answer 4

The prosecution can either:

1. apply to amend the indictment to add the new count; or
2. where the alternative count is a direct alternative to the current count, D can simply plead guilty to the alternative.

Question 5

How does pleading guilty to a direct alternative offence work?

Answer 5

The direct alternative offence must be ‘contained within’ the definition of the greater offence.

When D is asked to enter a plea, she can say: “Not guilty, but guilty of [lesser alternative offence].”

Question 6

In plea bargaining, what must the prosecution do in order to bring the greater offence count to an end once D has agreed to plead guilty to a lesser offence?

Answer 6

The prosecution can either:

(a) offer no evidence; or
(b) ask the judge to lie the count on the file.

Question 7

What happens when the prosecution tells the court that it will offer no evidence?

Answer 7

The judge will direct a not guilty verdict.

Question 8

When should the prosecution offer no evidence?

Answer 8

When it is satisfied that there is no or insufficient evidence to prove the count.

If there is sufficient evidence but D has agreed to plead to a lesser offence, the prosecution should ask the court to lie it on the file.

Question 9

What happens when the prosecution asks the court to lie a count on the file?

Answer 9

If the judge agrees, she will order the count to lie on the file marked “not to be proceeded with without the leave of the court or the Court of Appeal”.

Question 10

What is the effect of allowing an offence to lie on the file?

Answer 10

The charge is put on hold and can, rarely, be re-activated. E.g., if D escapes a related charge on appeal.

Question 11

When will the prosecution usually dispose of the other counts, once D has agreed to plead guilty to a lesser offence?

Answer 11

After sentencing for the guilty plea offence.