R v BX

[2010] NSWDC 313

CITATION:	R v BX [2010] NSWDC 313
JUDGMENT DATE:	25 November 2010
JURISDICTION:	District Court or New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	I propose to allow the application to amend so far as dates. I propose to refuse the application so far as location.
CATCHWORDS:	CRIMINAL LAW - jury trial - application to amend indictment - whether the proposed amendment results in injustice to accused - historical sexual assault - proposed amendment to dates and place
PARTIES:	Regina BX
FILE NUMBER(S):	2009/235564
COUNSEL:	Mr Fox for ODPP Mr Timmins for the accused

JUDGMENT

1. The Crown Prosecutor, Mr Fox, has applied to amend the indictment which was presented at the commencement of this trial last Monday, 22 November 2010. He is about to close his case. There are two types of amendments which he proposes. The first type is to amend the dates contained in four of the counts in the indictment. The second type is to amend a reference to a place in count 6.

2. Mr Fox, helpfully, marked the proposed amendments on a copy of the indictment which became Exhibit VDG on his application.

3. The proposed amendments to the dates concern counts 4, 5, 6 and 7. In each case the Crown Prosecutor's amendments would accommodate the evidence given by the witness who alleges that she was the victim of the sexual assaults, which are the subject of this trial.

4. The allegations in the original indictment span a period of 1 May 1985 to 31 December 1989.

5. In examination-in-chief and in cross-examination the witness' evidence varied from the dates in the indictment.

6. Mr Timmins, who appears for the accused, opposes the application. He says whereas an amendment might normally be made, this case is different. It is, he correctly points out, an historical sexual assault case and it deprives his client of the opportunity to prepare his defence, so far as the extended dates are concerned.

7. Mr Fox, on the other hand, points out that none of the amendments extends the overall period which commenced on 1 May 1985 and concluded on 31 December 1989.

8. I should add that none of the counts alleges that any crime was committed on a specific date. The indictment, as it stands, so far as counts 4, 5, 6 and 7 are concerned, in each case alleges that the offences were committed over a period of time extending from some months to over a year.

9. The test which I need to apply is whether or not the proposed amendments result in any injustice to the accused person.

10. I propose to grant the amendments so far as the dates are concerned. I do not see any particular injustice which would be suffered by the accused in this case because of the nature of the allegations which were originally made. In each case the counts proposed to be amended involved a period and none of the proposed amendments extends beyond the overall period. Had the allegations or any of them concerned a specific date then I could understand that the accused could suffer a prejudice.

11. In addition, this is really a case where the allegation of the principal witness for the prosecution is denied outright by the accused. The case will very much turn on whether or not the jury is satisfied beyond reasonable doubt of the prosecution case, especially their principal witness.

12. I do not regard the accused as suffering any prejudice from the proposed amendment concerning dates and I will grant leave to the Crown Prosecutor to amend the indictment concerning the dates in the way he proposes.

13. The second type of amendment concerns count 6, as I said, which presently alleges a sexual assault "at Tathra". The Crown Prosecutor wishes to amend that allegation to read "at or near Tathra".

14. The Crown's principal witness claims that that offence occurred near a water tower. Mr Timmins cross-examined her about the water tower. It has emerged in evidence that there would be more than one water tower, one at Tathra and one at Bega. It seems that the intention of the proposed amendment is to accommodate the possibility that the offence was committed at the water tower at Bega.

15. Mr Timmins says that he has prepared his case and cross-examined the witnesses based upon the allegation that it was the water tower at Tathra. He knows little about the water tower at Bega. I think there would be an injustice in permitting that amendment. Mr Timmins has already finished cross-examining the various witnesses and was not in a position to explore the circumstances or environment of the water tower at Bega.

16. For that reason I propose to refuse the Crown Prosecutor's application to amend count 6 by adding "or near".

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