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Criminal Procedure Act 2011

General provisions - Conduct of proceeding - Amendment of charge

136: Procedure if charge amended during trial

You could also call this:

"What happens if the charge against you is changed during a trial"

Illustration for Criminal Procedure Act 2011

If a charge is changed during a trial, it can only be changed to substitute one offence for another offence if there is a difference between what is being proved and what the charge says, and if the change will make the charge fit with what is being proved. You need to know that the court will consider whether the change will affect your defence. The court must make the change if it thinks you will not be affected by it.

If the court thinks the change might affect you, it can still make the change, but it might stop the trial for now or postpone it and let the jury go. The court can do this if it thinks stopping or postponing the trial will fix the problem.

The court follows rules like those in sections 21 and 133, and it can also look at what is said in section 133 when making decisions about changing charges during a trial.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM3360225.

Topics:
Crime and justice > Criminal lawCrime and justice > Courts and legal help
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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"

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136A: Procedure if charge added during trial, or

"What happens if a new charge is added during your trial"

Part 5General provisions
Conduct of proceeding: Amendment of charge

136Procedure if charge amended during trial

  1. Despite sections 21 and 133, during the trial a charge may be amended to substitute one offence for another offence only if—

  2. there appears to be a variance between the proof and the charge; and
    1. the amendment will make the charge fit with the proof.

      1. A charge must be amended under subsection (1) if in the court's opinion the defendant will not be or has not been misled or prejudiced in his or her defence by the amendment.

      2. Subsection (4) applies if, in the court's opinion, the defendant has been misled or prejudiced in his or her defence by any amendment of a charge made during the trial under section 133.

      3. If, in the court's opinion, the effect of the defendant having been misled or prejudiced might be removed by adjourning or postponing the trial, the court may make the amendment and—

      4. adjourn the trial; or
        1. postpone the trial and discharge the jury.

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