Fiji Magistrates Bench Book - Federal Court of Australia
Fiji Magistrates Bench Book - Federal Court of Australia Fiji Magistrates Bench Book - Federal Court of Australia
After you have received an application from the prosecution to amend, the following procedure is suggested: • Ask Counsel for the defence or the defendant (if unrepresented): “Do you consent to this application to amend or do you oppose it?” • If the amendment is not opposed and the defendant is represented, the amendment would ordinarily be granted. • Hear defence submissions. • Give the prosecution opportunity to reply. • Decide whether to grant the application or not. • Then amend the Evidence Sheet as appropriate and endorse and sign it: “Amended as above during the hearing”. or “Amended in Court - defendant present”. • Have your reasons recorded or note them briefly. • Announce that the amended charge replaces the original charge. • Put the amended charge to the defendant and take a plea. It is necessary to endorse the Evidence Sheet that the amended charge has been read to the defendant. • Ensure that everything said in connection with the amendment is recorded. 6.3 Procedure if Amended Charge is to be Heard by You If the amended charge is heard by you, evidence already given on the original charge is deemed to have been given for the purposes of the amended or substituted charge, but with rights for further examination, cross examination or re-examination if the amendment has substituted one charge for another If the defence claims to be embarrassed by the proposed amendment, you may adjourn: s214(3) CPC. If there is no adjournment, ask the parties: “Are there any further questions you wish to put to any witness who has already given evidence?” If so, then the witness or witnesses must be recalled and the hearing continued on the amended or substituted charge: s214(1)(b) CPC. Fiji Magistrates Bench Book April 2004
7 Exhibits 7.1 Production Though it is the Clerk’s function to mark the exhibits, you may have to intervene to ensure that each exhibit (especially with a set of photos) is: • distinctively marked; and • recorded in your notes in the Evidence Sheet in a manner that leaves no doubt what the exhibit mark refers to. Generally, prosecution exhibits are numbered 1, 2, 3, etc. and defence exhibits are letters A, B, C, etc. An exhibit produced by a prosecution witness in cross examination is a defence exhibit. 7.2 Marking of Exhibits by Witness Often parties pass exhibits, such as plans and photos, to witnesses quite indiscriminately and invite them to mark some point, e.g. the impact point in a collision. If such a situation occurs, care must be exercised to ensure clarity. Ensure that the witness marks all photos (or plans, or maps) with, ideally, a differently coloured pen and your notes should clearly describe it. If, however, by marking a plan or photograph, it is possible that a later witness may be influenced by such marking, it may be preferable to have a copy of the exhibit marked and produced as a separate exhibit with the original being kept in an unmarked state. 8 Application for Change of Plea A defendant may change his or her plea from “not guilty” to “guilty” on application. Credible grounds for such application must be provided. The right of the defendant to change or her plea exists until sentence. Note that there is no special right given to the defendant to apply for a change of election. It is suggested that, if a change by virtue of an amendment reduces a felony to a non-electable offence, then it follows that trial would be conducted summarily. On the other hand, if the amendment changes the nature of the charge to an electable offence, then an election should be put to the defendant before a plea is taken on the amended charge. Fiji Magistrates Bench Book April 2004
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After you have received an application from the prosecution to amend, the following procedure<br />
is suggested:<br />
• Ask Counsel for the defence or the defendant (if unrepresented):<br />
“Do you consent to this application to amend or do you oppose it?”<br />
• If the amendment is not opposed and the defendant is represented, the amendment would<br />
ordinarily be granted.<br />
• Hear defence submissions.<br />
• Give the prosecution opportunity to reply.<br />
• Decide whether to grant the application or not.<br />
• Then amend the Evidence Sheet as appropriate and endorse and sign it:<br />
“Amended as above during the hearing”.<br />
or<br />
“Amended in <strong>Court</strong> - defendant present”.<br />
• Have your reasons recorded or note them briefly.<br />
• Announce that the amended charge replaces the original charge.<br />
• Put the amended charge to the defendant and take a plea. It is necessary to endorse the<br />
Evidence Sheet that the amended charge has been read to the defendant.<br />
• Ensure that everything said in connection with the amendment is recorded.<br />
6.3 Procedure if Amended Charge is to be Heard by You<br />
If the amended charge is heard by you, evidence already given on the original charge is deemed<br />
to have been given for the purposes <strong>of</strong> the amended or substituted charge, but with rights for<br />
further examination, cross examination or re-examination if the amendment has substituted one<br />
charge for another<br />
If the defence claims to be embarrassed by the proposed amendment, you may adjourn: s214(3)<br />
CPC.<br />
If there is no adjournment, ask the parties:<br />
“Are there any further questions you wish to put to any witness who has already given<br />
evidence?”<br />
If so, then the witness or witnesses must be recalled and the hearing continued on the amended or<br />
substituted charge: s214(1)(b) CPC.<br />
<strong>Fiji</strong> <strong>Magistrates</strong> <strong>Bench</strong> <strong>Book</strong> April 2004
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