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8
Court of Criminal Appeal 4 February 2005

Regina v Lykouras

[2005] NSWCCA 8

Traffic & driving
CRIMINAL LAW PRACTICE AND PROCEDURE

Citation: Regina v Lykouras [2005] NSWCCA 8
Court: New South Wales Court of Criminal Appeal
Date: 4 February 2005
Judge(s): Sully J, Hidden J, Howie J (Howie J delivering the leading judgment)

Background

The accused was committed for trial in the District Court on a single charge of dangerous driving occasioning grievous bodily harm, on the basis that he was driving under the influence of morphine and cannabis at the time his van left the road and struck a telegraph pole, seriously injuring his front-seat passenger. The charge arose from an incident on 26 October 2002 at East Hills, New South Wales.

Shortly before the scheduled trial date, the Crown learned that the accused intended to challenge the admissibility of the blood sample evidence, alleging police had breached the statutory regime governing how such samples must be taken. As a precaution, the Crown applied on the morning of trial to amend the indictment by adding an alternative count: that the accused was driving in a manner dangerous to another person, without reliance on the drug evidence.

The trial judge, Judge Gibb of the District Court, granted leave to amend the indictment but then, without either party requesting it, ordered that the two counts be tried separately. Both the accused (challenging the amendment) and the Crown (challenging the order for separate trials) brought proceedings before the Court of Criminal Appeal.

  • Whether the trial judge should have granted the Crown leave to amend the indictment, under section 20 of the Criminal Procedure Act 1986, by adding an alternative count on the day of trial.
  • Whether, having granted the amendment, the trial judge was correct to order that the two alternative counts be tried separately rather than together.

Decision

On the first question, the Court of Criminal Appeal upheld the trial judge's decision to allow the amendment, though it granted leave to appeal so the issue could be examined. Howie J acknowledged the lateness of the application and the absence of committal proceedings on the new count, but found that the accused had not demonstrated sufficient prejudice to warrant refusing the amendment. The factual basis for the new count, that the accused permitted his vehicle to leave the road, was drawn almost entirely from evidence already relevant to the existing charge. Any residual unfairness could be addressed through appropriate jury directions, including directions about the Crown's obligation to negative alternative causes for the accident and the effect of any delay in raising the new allegation.

On the second question, the Court allowed the Crown's appeal and quashed the order for separate trials. Howie J described the result as "somewhat curious," given that the second count had been expressly added as an alternative to the first. The practical and legal purpose of alternative counts is to allow a jury to consider them together, not sequentially in separate proceedings. No sufficient basis existed to depart from the ordinary course of trying both counts at the one trial, and any residual concern about prejudice did not reach the level required to justify the disruption and inconvenience of separate proceedings.

Orders Made

  • Leave to appeal against the order granting the Crown leave to amend the indictment was granted, but the appeal on that ground was refused.
  • The Crown's appeal against the order for separate trials was allowed and the order for separate trials was quashed.

Key Takeaways

  • Late amendment of an indictment to add an alternative count is not automatically impermissible, even on the day of trial, provided the accused cannot demonstrate concrete prejudice that directions to the jury would be unable to remedy.
  • Where a new count relies substantially on the same evidence as the original charge, the absence of separate committal proceedings on the new count will not ordinarily, of itself, establish the level of prejudice needed to refuse leave to amend.
  • Alternative counts in an indictment serve a specific purpose: allowing a jury to assess related factual allegations together. Ordering separate trials of counts that are formally alternative to each other is inconsistent with that purpose absent compelling justification.
  • The Court of Criminal Appeal confirmed that concerns about unavailable witnesses or delayed investigation are matters ordinarily addressed through jury directions rather than by refusing amendment or separating trials.
  • Under section 52A(8) of the Crimes Act 1900, an accused charged with dangerous driving occasioning grievous bodily harm has a statutory defence if the impact was not in any way attributable to the alleged state of impairment or manner of driving; this underscores the practical importance of the Crown being able to run alternative bases for the same incident.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 20 (amendment of indictment)
- Crimes Act 1900 (NSW), s 52A(3)(a) (dangerous driving occasioning grievous bodily harm) and s 52A(8) (statutory defence)
- Evidence Act 1995 (NSW), s 138 (exclusion of improperly obtained evidence)

Cases:
- Beach (1994) 75 A Crim R 447
- R v Gulliford [2004] NSWCCA 338
- R v McBride [1962] 2 QB 167
- R v Thorpe [1972] 1 All ER 929
- R v Woodward [1995] 3 All ER 79
- Owens (1987) 30 A Crim R 59
- R v Johnston (1998) 45 NSWLR 362