Unit 13: Indictments and PTPH

Question 1

What is the indictment?

Answer 1

The document containing the charges against the accused on which the accused is arraigned at the commencement of the trial on indictment.

Question 2

No draft indictment may be served unless:

Answer 2

The accused has been sent for trial;

HC judge has directed or consented to th preferment of a voluntary bill of indictment;

CC Judge has consented to preferment of a bill of indictment following a declaration by the court approving a deferred prosecution afgreement;

CoA orders a retrial.

Question 3

Does an indictment that has been served under CrimPR 10 become the indictment where it is not signed?

Answer 3

Yes.

Question 4

WHo bears ultimate responsibility for the drafting of the indictment?

Answer 4

Counsel for the prosecution.

Question 5

Save for automatic generation, a draft indictment should be served on appropriate CC officer…

Answer 5

…within 20 days of (a) service of documents where person is sent for trial; or (b) HC consents to preferment of a voluntary bill of indictment.

Question 6

TRUE or FALSE. The CC can extend the time limit for indictment service?

Answer 6

TRUE.

Question 7

TRUE or FALSE. A draft indictment may include charges for any indictable offence disclosed by the evidence served under the regulations for the service of the prosecution case after accused has been sent.

Answer 7

True.

Question 8

If the drafter include a count for an offence in respect of which the accused was not sent…

Answer 8

…ensure the offence is disclosed by the statements.

Provide as much notice as possible to the accused.

Question 9

The basic requirements of an indictment’s layout are:

Answer 9

(a) each offence charges should be set out in a separate count.
(b) each count should be divided into a statement of offence and particulars of offence;
(c) describe the offence in ordinary language and refer to statutory provisions (if any)
(d) give such particulars as may be necessary for giving reasonable information as to the nature of the charge.

Question 10

Should a count state the date on which the offence occurred?

Answer 10

Yes, insofar as it is known.

Question 11

The rule against duplicity states:

Answer 11

A count must allege that an offence occurred on one day, not on several days.

Question 12

What is the exception to the duplicity rule?

Answer 12

Continuous offences which take place over a period of time.

Question 13

Give an example of a continuous offence.

Answer 13

Conspiracy

Question 14

More than one incident of a the commission of an offence may be included in a count if…

Answer 14

…those incidents together amount to a course of conduct having regard to time, place or purpose of commission.

Question 15

Crim PR 10.2(2) allows a single count to allege multiple incidents of the commission of the offence. Examples of when this is appropriate:

Answer 15

(a) the victim on each occasion was the same, or there was no identifiable individual victim as, for example, in a case of the unlawful importation of controlled drugs or of money laundering;

(b) the alleged incidents involved a marked degree of repetition in the method employed or in their location, or both;

(c) the alleged incidents took place over a clearly defined period, typically (but not necessarily) no more than about a year;

(d) in any event, the defence is such as to apply to every alleged incident without differentiation. Where what is in issue differs between different incidents, a single ‘multiple incidents’ count will not be appropriate, though it may be appropriate to use two or more such counts according to the circumstances and to the issues raised by the defence.

Question 16

Joint trials: The court may order separate trials unless

Answer 16

The offences to be tried together are founded on the same facts, or form part of a series of offences of the same or similar character.

Question 17

True or false. Joinder can apply where later offences would not have been committed but for the prior commission of an earlier offence.

Answer 17

True. the test is whether the charges have a comon factual origin.

Question 18

To show the existence of a series of offences, the prosecution must point to

Answer 18

A nexus between them.

Question 19

When will the prosecution proceed by way of specimen/sample counts?

Answer 19

Where P is accused of adoptign a systematic course of criminal conduct and it is not appropriate to allege a continuous offence or multiple offending count.

Question 20

Is there a need to distinguish between principal offenders and secondary parties in a joint offence count?

Answer 20

No.

Question 21

If two accused a charged on a joint count, must the verdict for them be same the same?

Answer 21

No.

Question 22

Joinder of accused is appropriate if

Answer 22

…The offences separately alleged against the accused are, on the evidence, so closely related by time or other factors that the interests of justice are best served by a single trial.

Question 23

Where counts for separate offences can be tried together, the trial judge is able to exercise discretion to order separate trials if…

Answer 23

…the joint trial would be prejudicial or embarassing for some reason, or if some other feature makes that course desirable.

Question 24

TRUE or FALSE. Where the accused are charged in a joint count, the arguments in favour of a joint trial are strong

Answer 24

TRUE.

Question 25

If prosecution case includes evidence that is admissible against D1 but not D2, is there an obligation to sever because that evidence might prejudice the jury against D2?

Answer 25

No, but judge should balance advantages of single trial against prejudice to D2 and consider how effective a jury direction would be.

Question 26

Where a joint trial of several accused will lead to a long and complicated trial, the judge should consider whether...

Answer 26

Shorter trials might be fairer and more efficient.

Question 27

The power to amend indictments may be exercised both:

Answer 27

In respect of formal defects in wording; In respect of substantial defects.

Question 28

Can new counts be inserted as an amendment?

Answer 28

Yes

Question 29

If an amendment is made after arraignment, what must be done?

Answer 29

Put it to D again so they can plead.

Question 30

When can amendments to indictments be made?

Answer 30

At any stage of a trial.

Question 31

What is the principal use of a voluntary bill of indictment?

Answer 31

Where proceedings need to be reinstituted since the charge was dismissed under CDA 1998 but fresh evidence agaisnt the accused has subsequently come to light.

Question 32

voluntary bills of indictment should onyl be used where

Answer 32

Good reason to depart from normal procedure is clearly shown.

Question 33

If D is unfit to plead and jury think he did it, the court can order the followingL:

Answer 33

Hospital order Supervision order Absolute discharge

Question 34

Can considerations of the question of D's fitness be left unti lthe opening of the defence case?

Answer 34

Yes.

Question 35

Is the jury present for determination of D's fitness?

Answer 35

No.

Question 36

If D is found to be under a disability, it shall be determined by a jury

Answer 36

...whether they are satisfied that the defendant did the offence.

Question 37

The procedure for arraignemnt is:

Answer 37

Clerk reads the indictment and asks how they plead (to each count in turn).

Question 38

Does the jury hear the arraignemtn?

Answer 38

No.

Question 39

If D does not reply to arraignment, what will court enter?

Answer 39

Not guilty.

Question 40

The only way that P is released from an obligation to prove each essential element of the offence is:

Answer 40

If D has made a formal admission; A fact is presumed; A fact is judicially noticed.

Question 41

Must a plea of guilty be entered by the accused personally?

Answer 41

Yes. It must come from their mouth. If it does not and they presume as such, mistrial.

Question 42

TRUE or FALSE. Whether to adjourn before sentencing is entirely at the court's discretion.

Answer 42

True.

Question 43

If a guilty plea for a lesser offence is accepted, how is D treated re the greater offence?

Answer 43

Acquitted.

Question 44

What is the procedure for switcing from not guilty to guilty?

Answer 44

Ask for indictment to be read again. If jury present, jury ordered to give a formal verdict of guilty.

Question 45

TRUE or FALSE. The judge has a discretion to allow D to withdraw a plea of guilty at any stage before sentencing is passed.

Answer 45

TRUE.

Question 46

What is the purpose of a PTPH?

Answer 46

If guilty plea, sentencing. If NG, ensure that all steps necessary for the proper preparation of a case for trial have been taken or are properly timetabled for future attention.

Question 47

The PTPH judge must be satisfeid that

Answer 47

D understands credit for guilty plea; D indicates plea; D understands that if there is a trial, it can occur in D's absence, and consequences for failing to attend re bail.

Question 48

Matters of case preparation that appear in the PTPH form include

Answer 48

Orders in relation to witnesses; Orders re disclosure; Outstanding legal issues (apps for hearsay/bad character).

Question 49

Where might the prosecution offer no evidence after a not guilty plea?

Answer 49

If they review their evidence and conclude that they cannot properly ask a jury to convict. It may be an agreement, in return for which D pleads guilty to other counts.

Question 50

What is it for the prosecution to ask a judge to order that an indictment shall lie on the file, not to be proceeded with without leave of the court/CoA.?

Answer 50

This avoids necessity of a trial, but avoids D actually being acquitted especially if evidence is strong. Used in a plea-bargain context.

Question 51

When must a judge dismiss a charge?

Answer 51

If it appears that the evidence against the applicant would not be sufficient to ensure a proper conviction.

Question 52

When should P serve the indictment in CC?

Answer 52

No more than 20 business days after serving copies on documents upon which P relies.

Question 53

What must each count on an indictment contain?

Answer 53

A statement of the offence charged that describes the defence in ordinary lagnuage, and identifies any legislation that creates it; and Such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.

Question 54

Can the prosecutor add counts to an indictment which were not subject of a s51 sending?

Answer 54

Yes.

Question 55

What is the effect of CrimPR 10.2(2)?

Answer 55

"More than one incident of the commission of the offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission." Allows indictment count to contain multiple incidents if offending is sufficiently similar.