Citation: James Borodin v R, Irene Borodin v R, ED v R, Bogomiagkov v R [2006] NSWCCA 83
Court: NSW Court of Criminal Appeal
Date: 28 March 2006
Judge(s): Sully J, Simpson J, Howie J (reasons delivered by Howie J)
Background
Four appellants were tried in the District Court alongside a fifth co-accused on a seven-count indictment arising from a serious criminal incident in July 2002. The charges included armed robbery, detaining persons with intent to obtain financial advantage, and compelling victims to execute or write on documents by threats of unlawful violence. The alleged victims were an accountant and his employee, who the Crown said were held at gunpoint and coerced into facilitating fraudulent financial transactions.
Thirteen days into the trial, and after the two principal Crown witnesses had given their evidence, the Crown applied to amend the indictment in two respects: substituting "firearm" for "knife" in the two armed robbery counts, and replacing "indorse a valuable security" with "write upon a paper" in two of the compulsion counts. Defence counsel opposed the application, arguing the amendments would cause injustice given how the witnesses had already been cross-examined. The trial judge allowed the amendments.
The jury convicted all four appellants on every count. They appealed on the single ground that the trial judge erred in permitting the amendments and that the amended convictions represented a miscarriage of justice.
Legal Issues
- Whether the trial judge erred in granting leave to amend the indictment under section 20 of the Criminal Procedure Act 1986 during the Crown case, after the principal witnesses had been cross-examined.
- Whether the amendments resulted in an unfair trial and, therefore, a miscarriage of justice warranting the quashing of the convictions.
Decision
Howie J (with whom Sully J and Simpson J agreed) dismissed all four appeals. The Court emphasised that the relevant question on appeal was not simply whether the trial judge had exercised a discretion incorrectly, but whether the amendment had produced an unfair trial. Only irreparable prejudice in meeting the amended charge would justify a refusal to permit amendment.
The Court found it impossible to identify how the amendments had caused any unfairness. The defence case rested entirely on the proposition that the two victims had fabricated their evidence and that records had been tampered with. Given that fundamental basis, the Court accepted the trial judge's view that cross-examination would not have proceeded materially differently had the indictment been amended earlier.
The trial judge had also offered to have the witnesses recalled for further cross-examination in light of the amendments, and the Court could not identify how the appellants would have been prejudiced had that offer been taken up. The only practical consequence of the amendments was that the counts fell to be determined on their merits, rather than on a technical inconsistency between the charge and the evidence.
The Court confirmed that the power to amend an indictment under section 21 of the Criminal Procedure Act 1986 is not confined to purely technical corrections. Tactical decisions made by defence counsel based on the original wording of the charge do not, of themselves, require a judge to refuse leave to amend. Rendering those tactics fruitless does not amount to the kind of injustice that warrants declining an amendment.
Orders Made
- All four appeals against conviction dismissed.
Key Takeaways
- A mid-trial amendment to an indictment will only produce a miscarriage of justice where the accused would be irreparably prejudiced in meeting the charge as amended, not simply because tactical decisions based on the original wording are rendered ineffective.
- Under section 21 of the Criminal Procedure Act 1986, a court may permit amendment of an indictment where doing so would not result in injustice. The Court of Criminal Appeal confirmed this power extends beyond technical corrections and can be exercised during the Crown case, even after principal witnesses have given evidence.
- In dismissing the appeals, the Court distinguished between genuine prejudice to the accused's ability to answer the charge and the loss of a tactical opportunity arising from an inconsistency between the stated charge and the supporting evidence.
- Where a trial judge offers to recall witnesses after an amendment so that further cross-examination can occur, that offer is a relevant factor in assessing whether any unfairness arises from the amendment.
- The factual basis for a charge remaining unchanged is a significant consideration in determining whether an amendment causes injustice, as illustrated by reference to R v Cook (NSWCCA, 9 May 1990).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 86(2)(a), 97(1), 103
- Criminal Procedure Act 1986 (NSW), ss 20, 21
Cases
- House v The King (1936) 55 CLR 499
- R v Stuart (NSWCCA, unreported, 8 March 1996)
- R v Cook (NSWCCA, unreported, 9 May 1990)