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Criminal Procedure Act 2011

General provisions - Conduct of proceeding - Amendment of charge

136A: Procedure if charge added during trial

You could also call this:

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

Illustration for Criminal Procedure Act 2011

If you are on trial, the court can allow a new charge to be added. This can happen if the prosecutor asks the court to do so. The court will only agree if certain conditions are met.

The court must be satisfied that there is a difference between what is being proven and the current charge. The new charge must fit with the proof, and the time for filing the charge has not run out. You, as the defendant, must not be misled or prejudiced by the new charge.

If the court thinks you will be prejudiced, but this can be fixed by delaying the trial, it can grant leave to add the new charge. In this case, the court can delay the trial or postpone it and discharge the jury.

If the court allows a new charge, it is like a new charging document has been filed, following the rules in section 14. The court's decision also means that the rules in section 138(2) and section 139 will apply to the new charge.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=LMS274894.

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Part 5General provisions
Conduct of proceeding: Amendment of charge

136AProcedure if charge added during trial

  1. During the trial, the court may, on the prosecutor’s application, grant leave to add a charge in the proceedings (the new charge).

  2. Leave may be granted under subsection (1) only if the court is satisfied—

  3. that there is a variance between the proof and the existing charge or charges; and
    1. the new charge fits with the proof; and
      1. the time for filing a charging document under section 25 for the new charge has not expired; and
        1. that the defendant will not be, or has not been, misled or prejudiced in his or her defence by the addition of the new charge during the trial.

          1. Subsection (4) applies if the court is satisfied that—

          2. the defendant will be, or has been, misled or prejudiced in his or her defence by the addition of the new charge during the trial; but
            1. the effect of that prejudice can be removed by adjourning or postponing the trial.

              1. If this subsection applies, the court may grant leave to add the new charge and may—

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

                  1. If the court grants leave to add a new charge under subsection (1) or (4),—

                  2. a charging document is deemed to have been filed in accordance with section 14 in respect of the new charge; and
                    1. leave is deemed to have been given under section 138(2) for the new charge to be added to the proceeding, and section 139 applies accordingly.

                      Notes
                      • Section 136A: inserted, on , by section 35 of the Courts Matters Act 2018 (2018 No 50).