R v BX [2010] NSWDC 313

New South Wales District Court

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.