Criminal Law and Procedure—Charge amended but fresh plea not taken—Charge amended again and fresh plea taken—Effect of first omission—Criminal Procedure Ordinance (Cap. 43), section 164 (1) and (4).
Facts
Section 164 (1) prescribes that “if a new charge is framed or alteration is made to a charge under section 162 or section 163 the Court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge ”.
Section 164 (4) provides that ” when a charge is so amended . . . the charge shall be treated for the purpose of all proceedings in connection therewith as having been filed in the amended form”.
The appellant was charged with an offence and pleaded not guilty; before evidence was called the charge was amended but no fresh plea was taken; after some evidence (which included documents put in) the charge was amended again but this time his plea was taken; and he was eventually convicted.
He appealed, arguing that owing to non-compliance with section 164 (1) in respect of the first amendment of the charge, the proceedings between that and the second amendment were void and consequently the evidence received in between was not lawfully admitted, with the result that the remaining evidence was insufficient to support the conviction, which should therefore be quashed and a verdict of
acquittal entered.
For the Crown it was argued that if part of the proceedings was void the whole trial was a nullity and a new trial should be ordered. It was also suggested that the fresh plea at the second amendment of the charge cured the defect of no plea being taken at the time of the first amendment.
Held
(1) The proceedings between the first amendment of the charge when no plea was taken and the second amendment of the charge were null and void; the subsequent plea could not render them valid; it is only the charge when amended that is to be treated as having been filed in the amended form.
(2) The proceedings after the second amendment of the charge, to which a plea was made, constituted a valid trial, which was not affected by the nullity of the earlier proceedings.
(3) The evidence received between the first amendment of the charge and the second, at a stage when the proceedings were a nullity, had to be excluded; that evidence was relied upon in the judgment appealed from, and it was not possible to say that if the trial Judge had not taken it into consideration he would have come to the same conclusion; therefore the conviction could not be sustained.
Appeal allowed: conviction quashed.
