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District Court 27 April 2020

R v Ross (No. 2)

[2020] NSWDC 195

Assault & violence
CRIMINAL PROCEDURE

Citation: R v Ross (No. 2) [2020] NSWDC 195
Court: District Court of New South Wales
Date: 27 April 2020
Judge: Abadee DCJ

Background

The accused was charged with wounding a victim with intent to cause grievous bodily harm (the primary count), with an alternative count of recklessly wounding in company. The alleged offending took place in April 2018 and involved a group assault on a victim who sustained, among other injuries, a stab wound to his right flank. The accused had elected trial by judge alone, and the matter was listed to commence on the day of the application.

Immediately before arraignment, the Crown applied for leave to amend the indictment by adding a further alternative count: assault occasioning actual bodily harm in company, under section 59(2) of the Crimes Act 1900 (NSW). The Crown's incoming counsel explained that he had independently formed a less optimistic view than his predecessor about whether the existing alternative count (reckless wounding) could be made out, given uncertainty in the case law about whether the accused needed to have known a knife would be used.

The proposed new charge rested on the same physical facts as the existing counts. The Crown's position was that even if both existing counts failed, the accused's participation in a group assault could still support a conviction for the lesser charge, regardless of his knowledge about the use of a knife.

  • Whether the Crown should be granted leave under section 20(1)(a) of the Criminal Procedure Act 1986 (NSW) to amend the indictment on the day of trial to add a further alternative charge.
  • Whether the proposed amendment would cause prejudice to the accused's fair trial.
  • Whether the lateness of the application was a sufficient basis to refuse the amendment.

Decision

Abadee DCJ granted leave to amend the indictment. His Honour drew on the Court of Criminal Appeal's decision in R v Lykouras [2005] NSWCCA 8, which established that it is not oppressive or unfair for the Crown to add an alternative charge arising from the same facts, even where the purpose is to guard against the failure of an existing charge. The Crown is entitled to prove its case in more than one way, and a court should refuse to permit amendment only in the rare case where doing so would result in prejudice to the fair trial of the accused.

His Honour acknowledged a distinction from Lykouras, in that the offence under section 35(3) of the Crimes Act (reckless wounding) and the proposed offence under section 59(2) (assault occasioning actual bodily harm in company) are plainly different offences, not merely different ways of proving the same offence. However, the physical facts underlying each count were relevantly the same. The substantive difference concerned the accused's state of mind, specifically whether he knew a knife would be used.

The accused's counsel raised two grounds of objection: uncertainty about the nature of the Crown case, and the lateness of the application. His Honour rejected both. On uncertainty, no specific prejudice beyond a generalised complaint of unfairness was identified, and the mere loss of the chance of a complete acquittal is not sufficient prejudice to resist amendment. On lateness, the Court accepted that the timing was somewhat regrettable, but noted that lateness carries greater weight when the accused has made irrevocable forensic decisions in reliance on the existing indictment. Since the application was made before the trial commenced, no such detriment was established.

Orders Made

  • Leave granted to the Crown to amend the indictment to add a further alternative count of assault occasioning actual bodily harm in company, contrary to section 59(2) of the Crimes Act 1900 (NSW).

Key Takeaways

  • The District Court confirmed that, following Lykouras, it will be a rare case where a court refuses to allow the Crown to amend an indictment to add an alternative count, absent demonstrated prejudice to the accused's fair trial.
  • A complaint that an amendment deprives the accused of the chance of a complete acquittal does not, without more, constitute sufficient prejudice to warrant refusal of leave to amend.
  • Where all proposed counts arise from the same physical facts, the addition of a further alternative charge does not automatically render the Crown case uncertain or oppressive, even if the offences involved are legally distinct.
  • The lateness of an application to amend carries greater weight when the accused has made irrevocable forensic decisions in reliance on the existing indictment. An application brought before trial commences weakens that objection considerably.
  • Under section 20(1)(a) of the Criminal Procedure Act 1986 (NSW), the prosecution of a case is not analogous to a sporting contest; the Crown's ability to rely on alternative charges from a single factual matrix reflects the proper administration of criminal justice.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 35(3), 52A(3), 59(2)
- Criminal Procedure Act 1986 (NSW), s 20(1)(a)

Cases
- R v Lykouras [2005] NSWCCA 8