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Criminal Procedure Act 2011

General provisions - Conduct of proceeding - Amendment of charge

134: Procedure if charge amended before trial

You could also call this:

"What happens if the court changes the charges against you before a trial"

Illustration for Criminal Procedure Act 2011

If a court changes a charge before a trial, you need to know what happens next. The court's earlier decisions still apply if they are still relevant, but the court must consider the changes made to the charge. If you pleaded to the original charge, the court may ask you to plead to the changed charge, and the rules in subpart 1 of Part 3 will apply with some changes. The court can also give directions about how the case will be managed, including applying some of the requirements of sections 54 to 57, or giving other directions.

If the charge is changed to a different offence, you may be able to make some choices, like choosing which court will hear your case, under section 50. The court will consider the type of offence you are now charged with and may make recommendations or decide which court should hear your case, following rules in section 67 and section 68. You or the prosecutor may also be able to apply to transfer your case to the High Court under section 70, depending on the circumstances.

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Topics:
Crime and justice > Criminal lawCrime and justice > Courts and legal help
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133: Amendment of charge, or

"The court can change what someone is accused of at any time before a decision is made."

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135: Procedure if charge amended after order made under section 68 or 70, or

"What happens if the charge against you changes after a decision about which court will hear your trial"

Part 5General provisions
Conduct of proceeding: Amendment of charge

134Procedure if charge amended before trial

  1. This section applies if the court amends a charge before the trial.

  2. Subject to this section and section 135, any pre-trial decisions and determinations made in the proceedings apply, to the extent that they are still applicable.

  3. If the defendant entered a plea to the charge before it was amended,—

  4. the court may ask the defendant to plead to the charge as amended, and subpart 1 of Part 3 applies with all necessary modifications; and
    1. subpart 3 of Part 3 does not apply in respect of the charge as amended unless the court directs otherwise.

      1. The court may, under subsection (3)(b),—

      2. direct that all or any of the requirements of sections 54 to 57 apply; or
        1. give any other directions in relation to the management of the case.

          1. If the charge is amended to substitute one offence for another and the substituted offence is a category 3 offence, the defendant may make an election under section 50.

          2. If the charge is amended to substitute one offence for another and the substituted offence is a category 2 or 3 offence, then, subject to section 135,—

          3. if the prosecutor identifies the substituted offence as a protocol offence, a District Court Judge may make a recommendation under section 67 and a High Court Judge must determine the level of trial court under section 68; and
            1. in any other case, the defendant or the prosecutor may make an application to transfer the proceeding to the High Court under section 70.

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