2
District Court of Western Australia
Circular to Practitioners CRIM 2010/2
Date of Issue: 9 September 2010
management of indictments
Summary: This Circular annexes a protocol agreed between the Court and the two prosecuting agencies regarding the management of indictments.
The District Court, Office of the Director of Public Prosecutions for Western Australia (“ODPP”) and the Commonwealth Director of Public Prosecutions (“CDPP”) have agreed to put in place a protocol for the management of indictments. The primary aim of the protocols is the ensure that there is a distinct audit trail of how the each charge the subject of a prosecution notice has been dealt with. The protocol is attached.
The protocol is published to ensure that the Court’s practices are transparent.
The protocol takes effect for indictments signed from 1 October 2010.
To the extent that the terms of the protocol set out practices in addition to those in the Criminal Procedure Act 2004 (WA) and the Criminal Procedure Rules 2005 (WA), the practices do not have statutory or regulatory force. A breach of the protocol does not in any way affect the validity of the indictment to which it relates.
The District Court, ODPP and CDPP will review the protocol from time to time to ensure that it remains appropriate.
GEORGE KINGSLEY
A/g Principal Registrar
Protocols for the Management of Indictments
The District Court, Office of the Director of Public Prosecutions for Western Australia (“ODPP”) and the Commonwealth Director of Public Prosecutions (“CDPP”) have agreed the following protocols for the management of indictments. The primary aim of the protocols is the ensure that there is a distinct audit trail of how the each charge the subject of a prosecution notice has been dealt with. The Court, ODPP and CDPP will review these protocols from time to time to ensure that they remain appropriate.
1. The prosecution will include the charge number for each count on the Indictment and on the Notice of Discontinuance. Where the charge is an ex officio count, the indictment will refer to “CPA s.83(6)” (see the example attached).
2. Where an Indictment is being amended to remove a count, the prosecution will file a CPR Form 1 Application pursuant to CPA s132 to amend the Indictment, together with:
(a) a Notice of Discontinuance for the charge relating to the count being removed; and
(b) a substituted Indictment (unless special circumstances require the original Indictment to remain in place).
3. Where an Indictment is being amended to add a count, the prosecution will file a CPR Form 1 Application pursuant to CPA s132 to amend the Indictment, together with a substituted Indictment.
4. Where the only future hearing date is a Trial, and a Notice of Discontinuance is to be filed in full satisfaction of all the counts on an Indictment, the prosecution will file a CPR Form 1 Application to deal with the issue of discontinuance ahead of the Trial.
5. Where the next future hearing date is not a Trial (eg. it is a Trial Listing hearing, a Sentencing Hearing, a Sentencing Mention Hearing or a Directions Hearing), and a Notice of Discontinuance is to be filed in full satisfaction of all the Counts on an Indictment, no CPR Form 1 Application will be filed. The Judge or Commissioner at the forthcoming hearing with deal with the Notice of Discontinuance. No formal application pursuant CPA s132 is required but correspondence from the prosecution will suffice.
6. Where there are minor/technical amendments are to be made to a count on an Indictment, the prosecution will make an application pursuant to CPA s132 to amend the Indictment with the proposed amendments identified in the application. If a Judge considers a clean copy of the Indictment is required for a jury at trial, the prosecution will provide an appropriately amended copy for that purpose.
7. If charges are amalgamated or substantially varied, the prosecution will file a CPR Form 1 Application pursuant to CPA s132 to amend the Indictment, together with:
(a) a Notice of Discontinuance for the charge/s being amalgamated or varied; and
(b) a substituted Indictment which identifies all “new” charges as being pursuant to “CPA s83(6)” in lieu of the former charge number for the count (unless special circumstances require the original Indictment to remain in place).
8. These protocols do not prevent the prosecution from making an oral application to amend or substitute an indictment if that is necessary in the circumstances.
Sample Indictment that includes Charge Numbers/s.83(6) in the margin. They currently appear in italics and red for ease of reference, but will normally be in normal font/black
Criminal Procedure Rules 2005
District Court
At: Perth
Number: XX / Indictment
Parties / State of Western Australia
v.
JFK
Details of Charges / I, an authorised officer, allege that—
Code
Sec
333
Perth 09/1234 / (1) On or about 6 November 2005 at Perth JFK unlawfully detained LBJ.
Code
Sec
325
Kal 09/111 / (2) On the same date and at the same place JFK sexually penetrated LBJ without her consent, by penetrating her vagina with his finger.
Code
Sec
327
CPA s83(6)) / (3) On the same date and at the same place JFK compelled LBJ to engage in sexual behaviour, namely, engage in fellatio.
Accused’s details / Name: / JFK
Date of birth: / 26 July 1978 / Male
Address: / 59 Broome St, Smithsville
Witnesses / The prosecutor intends to summons the people on the attached list to give evidence.
Authorised officer / Name: / XXXXXXX / DPP No:
Title: / Senior State Prosecutor
Office: / Director of Public Prosecutions for WA
17th Floor 141 St Georges Terrace
Perth WA 6000
Signature: / Date:
Sample Discontinuance that includes Charge Numbers/s.83(6) in the margin. They currently appear in italics and red for ease of reference, but will normally be in normal font/black
Criminal Procedure Act 2004Criminal Procedure Rules 2005
*Supreme Court/District Court
At: <Place of Court>
Number: <Court Number> / Discontinuance of charge(s)
(no indictment)
Accused / <Full Name of Accused> / Date of birth: <DOB>
Committal Details / On <Date of Committal> at <Place of Committal Court> the accused was committed for *trial/sentence to the <month> sessions of this Court on *a charge/charges that —
Code Sec XXX
(Perth 08/10110) / On X November 2008 at Perth Name of Accused unlawfully did grievous bodily harm to one Name of Victim.
Notice of discontinuance / I, the relevant authorised officer, notify the Court that the State discontinues proceedings against the accused in respect of the above charge(s).
Relevant Authorised officer / Name: / <Name of Prosecutor> / DPP No: <File No.>
Title: / <Title of Prosecutor>
Office: / Director of Public Prosecutions for WA
Level 1 International House
26 St Georges Terrace
PERTH WA 6000
Signature: / Date: