Order 2 Division 4 of the Criminal Practice Rules 2022 is headed Charging instruments, and defines the term: the document containing the charge(s) against the accused.
Rules 13 and 14
Rule 13(1) — in prosecutions conducted by the Public Prosecutor, the charging instrument shall be an indictment, set out in Form 13.
Rule 14(1) — in prosecutions conducted by a private prosecutor under s 616 of the Code, the charging instrument shall be an information, set out in Form 14.
The statement of offence may be in the words of —
(a) the Schedule 1 form for the offence, with the changes necessary to make the words consistent with the particular circumstances of the alleged offence; or
(b) if there is no Schedule 1 form for the offence, the Code or other law creating the offence.
The Code is defined in Order 1 Rule 3 as the Criminal Code in Schedule 1 to the Criminal Code Act, Chapter No 262.
The provisions of these Rules as to the form and content of indictments shall apply irrespective of whether an indictment is drafted and presented under s 525 or s 526 of the Code or under any other law.
So an indictment presented after a District Court refused to commit (section 526) takes the same form as one following an ordinary committal.
Rule 15(1) and (2)
(1) The charges in a charging instrument shall be described as “Counts” and shall, if there is more than one charge, be numbered consecutively beginning with the number 1.
(2) When an alternative charge is expressly pleaded it shall be described as such and clearly indicate the count in respect of which it is an alternative.
Sub-rule (2) requires two things of an alternative count: that it be described as such, and that it clearly indicate the count in respect of which it is an alternative.
That matters to the accused, who must know what case is to be met, and to the Court at verdict. An unlabelled count reads as a separate charge.
Rule 15(3)
Where, on a trial, an application is made to amend an indictment, it may be made orally or, if directed by the Court by notice of motion supported, if appropriate, by affidavit, and determined in accordance with s 535 of the Code and other relevant laws.
So amendment is governed by the Code, and the Rules supply only the mode of application — ordinarily oral.
Division 6
(1) An application by an accused under s 534(2) or s 558 of the Code to quash an indictment may be made, subject to the directions of the Court, orally or by notice of motion, after presentation of the indictment or information, and before pleading to the charge.
(2) A notice of motion referred to in sub-rule (1) shall state the grounds on which the application is based.
After presentation of the indictment — so the indictment must have been presented first — and before pleading to the charge. An accused who pleads and then seeks to quash has missed the moment contemplated by the rule.
The same window applies to a demurrer. See arraignment.
(1) An accused who intends to demur to a charge under s 567 of the Code shall, if directed by a Judge in accordance with s 560(1) of the Code, after presentation of the indictment and before pleading to the charge, orally indicate their intention, either personally or through their lawyer, and then, subject to any directions of the Court, file and serve a demurrer in Form 15.
(2) A demurrer … shall be supported by an affidavit of the accused and shall state the grounds on which the demurrer is based.
The accused’s own affidavit is required. And the intention must be indicated orally first — the written demurrer follows.
A demurrer says, in effect, that even if everything alleged is true it does not amount to the offence charged. It goes to the sufficiency of the charge, not to the evidence — unlike a no-case submission, which comes at the close of the prosecution case.
Rule 16
An application under s 568 of the Code may be made orally or, if directed by the Court, by notice of motion.
Order 2 Rule 2(1)(b) is relevant here: where more than one person is committed for the same offence, a separate file shall be opened in respect of each person — so co-accused already have separate files, and severance is about the trial rather than the file.
Severance may also be raised at the pre-trial review: Order 6 Rule 5(a) allows an oral application for the severance of any count or accused on the draft indictment, and (b) for amendment or provision of further and better particulars of any count.
Seen before trial
At least seven days before the pre-trial review, prosecuting counsel must file and serve a prosecution pre-trial review statement in Form 24 informing the Court and the defence of the likely charge(s) on which the accused is to be indicted — and the Public Prosecutor shall attach a draft indictment, unless for special reason it is considered inappropriate, without any enforceable obligation that the State will proceed as per the draft indictment.
So the defence ordinarily sees a draft indictment before trial, though the State is not bound by it.
For fraud and corruption matters, Order 4 Rule 8(3)(d) requires the directions hearing to address early indication of the possible charge. See fraud and corruption case management.
Sources
- Criminal Practice Rules 2022 — O 1 r 3; O 2 rr 2, 7, 12–18; O 4 r 8; O 6 rr 3, 5; Forms 13–15, 24
- Criminal Code Act (Chapter 262) — ss 525, 526, 534(2), 535, 558, 560(1), 567, 568, 616
The PacLII page for the Criminal Code Act (Chapter 262) is a landing page; the consolidated text is not reproduced there in HTML.
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.