CPR3701 Assignment 02 Feedback

CPR3701 Assignment 02 Feedback Question 01 I. Discuss the Circumstances under which an error in a charge sheet may be corrected. Section 86 allows for the amendment of charge sheets that are defective: Where it is defective for want of an essential element; where there is material difference between the allegation in the charge sheet and the evidence that has been led, where words have been omitted or unnecessarily inserted or any other error is made. Court may order an amendment only if it considers that the making of the amendment will not prejudice the accused in his defence. There won’t be prejudice if there is only a slight variance or where it is clear that the defence would have remained exactly the same had the state originally presented the charge in the amended form. Where application to amend the charge is made on appeal the court must be satisfied that the defence would have remained the same if the charge had originally contained the necessary particulars. On appeal the court would accede to an application for the amendment of a charge only if it were satisfied that there was no reasonable doubt that the appellant would not be prejudiced which will depend upon the facts and circumstances of each case. Section 86 makes provision for the amendment of the charge and not replacement thereof by an altogether new charge. If the proposed amendment doesn’t correspond at all to the original charge, then we talk of substitution and not amendment. Should a new charge be framed in the course of a trial, the possibility of prejudice to the accused is strong as he comes to court prepared to meet a particular charge and now will be faced with a different issue. Section 86(4) provides that the fact that the charge is not amended doesn’t affect the validity of the proceedings, unless the court has refused to allow the amendment. If the failure to amend would not have prejudiced the accused in his defence, the failure to effect the amendment will not invalidate the proceedings. Because 2 Section 88 allows for defects to be cured by evidence, the need for amendments has largely fallen away, except where the want of an essential averment was brought to the notice of the court in which case the automatic cure in s88 does not become operative and the change will have to be amended.