Citation: R v BX [2010] NSWDC 313
Court: District Court of New South Wales
Date: 25 November 2010
Judge(s): Cogswell SC DCJ
Background
The accused faced trial on charges of historical sexual assault spanning the period 1 May 1985 to 31 December 1989. The prosecution's principal witness gave evidence that varied, in some respects, from the particulars set out in the indictment as originally presented.
As the Crown was about to close its case, the Crown Prosecutor applied to amend the indictment in two distinct ways: first, to adjust the date ranges in four counts (counts 4, 5, 6 and 7) to better reflect the witness's evidence; and second, to change the location described in count 6 from "at Tathra" to "at or near Tathra."
The accused opposed both amendments, arguing that each would cause injustice given the historical nature of the allegations and the state of the defence's preparation.
Legal Issues
- Whether amending the date ranges in four counts of a historical sexual assault indictment would result in injustice to the accused.
- Whether amending the location in count 6 from "at Tathra" to "at or near Tathra" would result in injustice to the accused.
Decision
The court identified the governing test as whether the proposed amendments would result in injustice to the accused. On the date amendments, the court granted leave. None of the proposed changes extended beyond the overall period already alleged in the original indictment (1 May 1985 to 31 December 1989), and none of the affected counts had alleged a specific single date. Each count as originally drafted already spanned a period of some months to over a year.
The court also noted that the defence was one of outright denial, meaning the trial would turn substantially on whether the jury accepted the prosecution's principal witness. In those circumstances, no meaningful prejudice arose from adjusting date ranges that remained within the period already pleaded.
On the location amendment, the court reached the opposite conclusion. The Crown sought to broaden "at Tathra" to "at or near Tathra," with the apparent intention of accommodating the possibility that the relevant offence occurred at a water tower near Bega rather than at Tathra. Defence counsel had already completed cross-examination of witnesses on the basis that the location was the Tathra water tower, without any opportunity to explore the circumstances of the Bega water tower.
The court found that permitting this amendment after cross-examination had concluded would cause genuine injustice. The location amendment was refused.
Orders Made
- Leave granted to amend the indictment with respect to the date ranges in counts 4, 5, 6 and 7.
- Application to amend count 6 by adding "or near" to the location particulars refused.
Key Takeaways
- The governing test on an application to amend an indictment is whether the proposed amendment would result in injustice to the accused.
- Date range amendments that remain within the overall period already pleaded in a historical sexual assault indictment do not necessarily cause injustice, particularly where no count alleged a specific date and the defence is one of outright denial.
- Where an accused has prepared and conducted cross-examination on the basis of a specific location pleaded in the indictment, amending that location after cross-examination is complete can constitute injustice sufficient to defeat the application.
- The District Court drew a practical distinction between broadening periods within an existing timeframe (generally permissible) and introducing new geographic particulars after witnesses have already been cross-examined (potentially impermissible).
- The timing of an amendment application within the trial is a relevant consideration: amendments sought after the defence has cross-examined on specific particulars carry a greater risk of causing unfairness.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment text or metadata.