R (Commonwealth) v Mark William Standen [2011] NSWSC 1054

Supreme Court New South Wales

Medium Neutral Citation: R (Commonwealth) v Mark William Standen [2011] NSWSC 1054 Hearing dates: 25 July 2011 Decision date: 25 July 2011 Jurisdiction: Common Law - Criminal Before: James J Decision: Grant leave to the Crown to amend counts 1 and 3 pursuant to s 20 of the Criminal Procedure Act Category: Interlocutory applications Parties: Regina, Mark William Standen Representation: T Game SC, H Dhanji SC, S Buchen (Crown) M Ierace SC, G Farmer (Accused) Commonwealth DPP (Crown) Gordon Elliot, Elliot Lawyers (Accused) File Number(s): 2009/8922

JUDGMENT - On application by the Crown to amend the indictment - page 4880 of the transcript 1HIS HONOUR: The Crown has applied to amend the indictment by amending count 1 by adding "James Henry Kinch" after the words "Bakhos Jalalaty" and by amending count 3 by adding "James Henry Kinch" after the words "Bakhos Jalalaty" and deleting the words "and divers others". 2Counsel for the accused did not oppose, but did not actually consent to, the Crown's application. 3The application is made pursuant to s 20 or s 21 of the Criminal Procedure Act . Under s 20 an indictment may not be amended after it is presented, except by the prosecution (a) with the leave of the Court or (b) with the consent of the accused. Under s 21 of the Criminal Procedure Act , if a court is of the opinion that the indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. 4I consider that I should grant leave to the Crown to amend both counts pursuant to s 20 of the Criminal Procedure Act . 5As the indictment stands before any amendment, the only person named in counts 1 and 3 of the indictment, apart from the accused, is Bakhos Jalalaty. In his judgment of 4 March 2011 in the Court of Criminal Appeal on the appeal under s 5F of the Criminal Appeal Act Hodgson JA stated the elements of the offence charged in count 1 of the indictment as including an element that the accused entered into an agreement with one or more other persons "(including at least Jalalaty)". Accordingly, his Honour would appear to have held that Jalalaty would be an essential party to any agreement alleged by the Crown. 6However, under s 11.5(2)(a) of the Commonwealth Criminal Code (the offence charged in count 1 is an offence under s 11.5 and s 307.11 of the Code) it is only necessary for the Crown to prove that the accused entered into an agreement "with one or more other persons". It has always been part of the Crown case, as particularised, opened and conducted, that James Henry Kinch was a party to the agreement alleged by the Crown and it should be sufficient for the Crown to prove that the accused entered into an agreement with Kinch, even if the Crown was unable to prove that the accused entered into an agreement with Jalalaty. 7The amendment sought by the Crown, if made, would distinguish the indictment from the indictment considered by Hodgson JA and would make it clear, as has always been the Crown case, that it would be sufficient for the Crown to prove that the accused entered into an agreement with Jalalaty or that the accused entered into an agreement with Kinch. The Crown, of course, asserts that it can prove that the accused entered into an agreement with both Kinch and Jalalaty. 8Hodgson JA did not state in his judgment the elements of the offence charged in count 3 of the indictment. However, count 3 of the indictment should also be amended so that it accords with what has always been the Crown case. 9As I have already noted, counsel for the accused did not oppose the Crown's application to amend the indictment. 10I do not consider that the making of the amendments to the indictment could cause any prejudice or embarrassment to the accused in his defence and it has not been suggested by counsel for the accused that it would cause any prejudice or embarrassment. 11I have not found it necessary to decide whether the indictment could also be amended pursuant to s 21 of the Criminal Procedure Act .