R v McGlone (No 2)[2019] QDCPR 8

DISTRICT COURT OF QUEENSLAND

1. [1]
   The Crown has applied to add, as an alternative to the unlawfully doing grievous bodily harm count, assault occasioning bodily harm. We are now in day 3 of the trial and the Crown case is not far off finishing. The defendant is charged with one count of burglary by breaking in the night with intent and one count of doing grievous bodily harm. He has pleaded guilty to count 1, but not guilty to count 2.

2. [2]
   After cross-examination of the Crown’s doctor, Dr O'Hanlon, the Crown has concerns it cannot prove grievous bodily harm, and hence wishes to add the alternative count. It relies on section 572 of the Criminal Code. This section provides:

572 Amendment of indictments

1. (1)
   If, on the trial of a person charged with an indictable offence, there appears  to be a variance between the indictment and the evidence, or it appears that any words that ought to have been inserted in the indictment have been omitted, or any count that ought to have been included in the indictment has been omitted, or that any words that ought to have been omitted have been inserted, the court may, if it considers that the variance, omission, or insertion, is not material to the merits of the case, and that the accused person will not be prejudiced thereby in the person’s defence on the merits, order the indictment to be amended, so far as it is necessary, on such terms (if any) as to postponing the trial, and directing it to be had before the same jury or another jury, as the court may think reasonable.

(1A)Without limiting subsection (1), if the court considers the offence charged in                             the indictment is also a domestic violence offence, the court may order that                             the indictment be amended to state the offence is also a domestic violence                                           offence.

3. (2)
    The indictment is thereupon to be amended in accordance with the order of                             the court.

3. (3)
    If the court is satisfied no injustice will be done by amending the indictment,                             the court may make the order at any time before, or at any stage of, the trial                             on the indictment, or after verdict.

3. (4)
    When an indictment has been amended, the trial is to proceed, at the                              appointed time, upon the amended indictment, and the same consequences                             ensue, in all respects and as to all persons, as if the indictment had been                                           originally in its amended form.

3. (5)
    If it becomes necessary to draw up a formal record in any case in which an                             amendment has been made, the record is to be drawn up setting out the                                           indictment as amended, and without taking any notice of the fact of the                                           amendment having been made.

3. [3]
   Before 1997, it would not have been possible for the Crown to seek to amend the indictment in this way. In Maher v R (1987) 163 CLR 221, the High Court held it was not possible for the Crown to add two further counts to the indictment after the jury had already been sworn to try the issues of the original count. 

4. [4]
   The section was different at that time and did not allow for the addition of a further count. It read:

If on the trial of a person charged with an indictable offence there appears to be a variance between the indictment and the evidence or it appears that any words that ought to have been inserted in the indictment have been omitted or that any words that ought to have been omitted have been inserted, the court may, if it considers that the variance omission or insertion is not material to the merits of the case and the accused person will not be prejudiced thereby in his defence on the merits, order the indictment to be amended so far it is necessary on such terms, if any, as to postponing the trial and directing it to be had before the same jury or another jury as the court may think reasonable.

5. [5]
   It may be seen that the present section 572 differs from that considered in Maher.  Firstly, the present section allows for the insertion of a new count.  Secondly, once the amendment is made, the effect is that the count is deemed to have been on the original indictment, and thirdly the amendment may be made at any time of the trial or after verdict, or even on appeal.  These amendments were introduced by Act number 3 of 1997.

6. [6]
   In R v Fahey [2002] 1 Qd R 391; [2001] QCA 82, the Court of Appeal considered the effect of these amendments.  In that case, the applicants had pleaded guilty to a defective indictment.  The charge failed to include the word “unlawfully” where doing grievous bodily harm was alleged.  The charge was amended on appeal by the Court of Appeal.  Thomas JA referring to the new section 572, noted at paragraph 16 that subsection (3) had been inserted in 1997 and noted that the Second Reading Speech suggested the amendment was to remove the difficulties encountered in the Maher trial. 

7. [7]
   However, of course, any amendment is subject to a consideration of whether the amendment is material to the merits of the case and that the accused is not prejudiced in his defence.

8. [8]
   In this case, the Crown submits that there is no prejudice. The Crown submits that the doctor here failed to come up to proof in cross-examination. In this case, it is submitted that there is no prejudice because the particulars have always been that there was an assault. It is not a case where there is self-defence or accident. It is a case where the defence case is that of his own volition, whether it be by way of alcohol intoxication or otherwise, the complainant fell down the stairs. The Crown relies on GO v R (1990) 73 NTR 1 where the court held that an amendment was appropriate in that case to change a charge of stealing to robbery, and it was noted at page 8:

This section appears to have been drawn with the object of making the court’s power of amendment as wide as possible, consistent with justice and common sense, but always with the rider that the accused should not thereby be prejudiced.

9. [9]
   The Crown submits it is in the interests of justice, where serious injury has occurred, but the medical evidence happens not to come up to proof to GBH, to allow such an amendment.

10. [10]
    Mr Hansen, on the other hand, submitted there is prejudice to the defence. He firstly submits that he has been deprived of putting his instructions concerning the potential defence of provocation to assault. One does not know yet whether that defence is available. At the moment, it would appear not, but we have not yet got to the defence case. Having said that, the Crown has agreed the complainant can be recalled for such instructions to be put, which would remove such prejudice. The other point Mr Hansen raises is that this was an all or nothing case. It was GBH or nothing, and if GBH was not proved, that would lead to a full acquittal on that count. He relies on the case of R v Willersdorf [2001] QCA 183.  He submits that it would be unjust to permit the amendment at this stage, and it’s too late, in any event, for that to occur.

11. [11]
    The defence case is that the defendant did not assault the complainant. The case is the complainant himself fell down the stairs and suffered the injuries alleged.

12. [12]
    I do not think the insertion of an alternative count alleging assault occasioning bodily harm in reality prejudices the defendant. True, he doesn’t have the benefit of getting fully acquitted, but then the interests of justice require a consideration not only from the defence point of view, but also the point of view of the community and the Crown. Aside from, perhaps, cross-examination of the complainant concerning the conversation over the phone or conversations before the events in the house, it would not change the cross-examination in any other way. It may have changed the cross-examination, perhaps, of Dr O'Hanlon, but I gave the opportunity to the defence to consider this and they do not require the doctor for further cross-examination.

13. [13]
    In my opinion, this is exactly the sort of case the amendments in 1997 contemplated.

14. [14]
    Subject to the complainant being recalled for cross-examination, I allow the amendment.