Section 335 — Crimes Act 1961: Variance and amendment

335 Variance and amendment (1) If on the trial of an indictment there appears to be a variance between the proof and the charge in any count of the indictment either as filed or as amended, or as it would have been if amended in conformity with any such further particulars, the Court before which the case is tried, or the Court of Appeal, may amend the indictment, or any count in it, so as to make it conformable with the proof. (2) If the Court is of opinion that the accused has not been misled or prejudiced in his defence by such variance it shall make the amendment. (3) If it appears that the indictment has been filed under some other enactment instead of under this Act, or under this Act instead of under some other enactment, or that there is in the indictment or in any count in it an omission to state or a defective statement of anything requisite to constitute the crime, or an omission to negative any exception that ought to be negatived, but that the matter omitted is proved by the evidence, the Court before which the trial takes place, or the Court of Appeal, if of opinion that the accused has not been misled or prejudiced in his defence by the error or omission, shall amend the indictment or count as may be necessary. (4) In any such case the trial or the appeal may then proceed in all respects as if the indictment or count had been originally framed as amended. (5) If the Court is of opinion that the accused has been misled or prejudiced in his defence by any such variance, error, omission, or defective statement as aforesaid, but that the effect of his being misled or prejudiced might be removed by adjourning or postponing the trial, the Court may in its discretion make the amendment and adjourn the trial to a future day in the same sittings, or discharge the jury and postpone the trial to the next sittings of the Court, on such terms as it thinks just. (6) Where an amendment of any indictment or count is made under this section by the Court of Appeal, that Court may in its discretion, in making the amendment, either affirm the sentence or direct a new trial. (7) In determining whether the accused has been misled or prejudiced in his defence, the Court that has to determine the question shall consider the contents of the depositions, as well as the other circumstances of the case. (8) The propriety of making or refusing to make any such amendment shall be deemed a question for the Court, and the decision of the Court upon it may be reserved for the Court of Appeal, or may be brought on appeal before the Court of Appeal, in the same manner as any other decision on a point of law. Compare: 1908 No 32 s 392 Subsections (1) and (2) were amended, as from 1 March 1996, by section 4(1) Crimes Amendment Act (No 2) 1995 (1995 No 68) by substituting the word “ filed ” for the word “ presented ” . See clause 2 Crimes Amendment Act Commencement Order 1996 (SR 1996/1).