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State v Kumar [2010] FJMC 156; Criminal Case 907.2009 (20 July 2010)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 907 of 2009

STATE

V

URMILA KUMAR d/o Ram Raj

For Prosecution: Ms. Lomani A. (DPP Office)
Accused: Mr. Singh

RULING

1. This case is for ruling on objections raised by the counsel for the accused for the "proposed amendments" to the existing charges. Both parties were given time to file their submissions in writing.
   
2. Accused is charged for one count of "Assault Occasioning Actual Bodily Harm" an offence punishable under sec. 245 of the Penal Code.
   
3. When this case came up for hearing on 18th May 2010, Counsel from the office of DPP informed the Court that after they have received the file from the Regional Prosecutor for the purpose of conducting the trial, they have found that there should be another count in the charge sheet. Therefore, counsel moved to file amended charge sheet.
   
4. Counsel for the prosecution in her written submissions stated that the application for amendment of the charges had been made in pursuant to sec. 182(1) of the Criminal Procedure Decree 2009.
   

Sec. 182(1) of the CPD

"Where at any stage of the trial before the close of the case for the prosecution, it appears to the Court that the charge is defective (either in substance or in form), the Court may make such order for the alteration of the charge, either by-

(a) amendment of the charges; or

(b) by the substitution or addition of a new charge

as the Court thinks necessary to meet the circumstances of the case"

5. In his written submission Counsel for the accused stated that the application to amend the charges is very late as the case had already fixed for hearing and the accused will be greatly prejudiced if the amendment is allowed by the Court.
   
6. In support of his objections Counsel relied upon R v. Harden [1962] Cr. App. R.90 where it was held that "substitution of a different count not permissible at a late stage of trial", R v. Johal [1973] QB 475 which held that "an amendment during the course of the trial is likely to prejudice the defendant and the longer the interval between arraignment and amendment the more likely it is that injustice will be caused' and R v. Jennings [1949] 33 Cr. App. Rep 143 which held that 'an amendment resulting in a totally different offence from that originally charged must have prejudiced the defendant".
   
7. In addition to the above decisions Counsel drew the attention of the Court to Halsbury's Laws of England, 04th Edition Vol II, 1976: 134 para. 218, where it state that "where before trial, or at any stage of a trial, it appears to the court that an indictment is defective, the judge must make such order for its amendment as appears necessary in the circumstance of the case, unless having regard to the merits of the case, the required amendments cannot be made without injustice".
   
8. In rebuttal to the above objections Counsel for the prosecution made following submissions.
   
   1. R v. Hayden is irrelevant to this case as the amendments being made prior to the commencement of the trial.
      
   2. In Leweniqila v. The State [2004] FJHC 209, Justice Shameem had held that "It is evident, on a reading of both informations, that the new offences alleged laid on the basis of the same evidence in respect of the same allegations and in respect of the same acts.... With respect therefore, I am unable to discover any substantial difference in his approach in respect of either information, and therefore to discover any prejudice".
      
   100. In this case amended charge reflects the same evidence of the complainant and in respect of the same act the accused is alleged to have committed on the complainant and thereby no prejudice to the accused.
        
9. After carefully considering the written submissions filed by both parties I decide that the proposed amendment is not prejudicial to the accused as it had been made prior to the commencement of the trial and that amendment is based on the same evidence.
   
10. Objections for amendment of charges, dismissed accordingly.
    

On this Tuesday the 20th day of July 2010

Kaweendra Nanayakkara
Resident Magistrate