R v WAV

Although the substance of the case before the Court of Appeal concerned an appeal against sentence, the Court was required to deal with the preliminary issue of whether or not the indictment could be amended after the accused had pleaded guilty to the offence charged.  The offence relevant to the accused’s circumstances was s 364 of the Criminal Code, being the offence of having lawful care or charge of a child under the age of 16 and causing harm to the child by failing to provide the child with adequate medical treatment when the person “knew or ought reasonably to have known [that conduct] would be likely to cause harm to the child”.  The form of the indictment omitted those last words concerning the knowledge of the accused as it was based on Form 211 of Schedule 3 of the Criminal Practice Rules and no modification was made to adapt it to the circumstances of the case.  The Court noted that, s 707 of the Criminal Code provides to the effect that “a form prescribed under a rule of court for a criminal proceeding is taken to be sufficient for the purpose for which it is to be used, and if used, is a sufficient statement of the relevant offence”. The Court considered a number of cases where the wording of the indictment differed from the wording of the words of the offence and observed that there was a limit to which there might be any divergence.  From those cases the relevant principle was identified as being:

“[16]The point that seems to have emerged from those cases is that where the disparity in the wording, between that in the approved form and that in the statute, changes the essential nature of the charge, as it did in Dearnley and in Aniba, s 707 of the Criminal Code will not avail.  However, where the disparity is such that the essential nature of the charge is still plainly clear on the face of the indictment, such that it cannot be said that the plea of guilty was to a charge not known at law, then s 707 will be given full operation.”