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  • Writer's pictureGeoff Harrison

Defects & Indictments

Published by Geoff Harrison | 23 September 2023

The start of a prosecution is the filing of an Indictment or Court Attendance Notice and it is to that charge the person must answer hence, it is the particulars or essential elements of the charge that the prosecution is required to prove. The filing of the indictment vests the District Court with jurisdiction (Jago v The District Court of NSW (1989) 168 CLR 23 per Brennan J at [5]). However, not everything within the charge is an essential element or ingredient eg. names, dates and times are not essential ingredients unless they are or become of essence to the offence. The relevant section that deals with defects in Indictments or Court Attendance Notices is s16 of the Criminal Procedure Act 1986 ('the Act').

Another area relating to defects is the signing of an indictment by persons not authorised - this has since been cured by legislation: s16((1)(i) of the Act.

Other Sources:



Extracted Legislation:


Application of Part

(1) This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with.

(2) In this Part--

"indictment" includes a court attendance notice or any other process or document by which criminal proceedings are commenced.


Certain defects do not affect indictment

(1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds--

(a) for the improper insertion or omission of the words "as appears by the record", "with force and arms", "against the peace", "against the form of the statute" or "feloniously",

(b) for want of an averment of any matter unnecessary to be proved or necessarily implied,

(c) for want of a proper or perfect venue or a proper or formal conclusion,

(d) for want of any additional accused person or for any imperfection relating to any additional accused person,

(d1) if the indictment is for an offence under the Crimes Act 1900 relating to the destruction or loss of a foetus, regardless of the gestational age of the foetus--for stating the name of the foetus,

(e) for want of any statement of the value or price of any matter or thing, or the amount of damage or injury, if such value, price or amount is not of the essence of the offence,

(f) for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name,

(g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly,

(h) for stating an offence to have been committed on a day subsequent to the finding of the indictment, on an impossible day or on a day that never happened,

(i) if the indictment was signed by an Australian legal practitioner who has been instructed to prosecute the proceedings to which the indictment relates on behalf of the Director of Public Prosecutions--for failure by the Director to authorise the Australian legal practitioner by order in writing under section 126 (2) to sign indictments for and on behalf of the Director.

(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of--

(a) any alleged defect in it in substance or in form, or

(b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.

Note : An adjournment may be obtained under section 40 where there is a variance between the evidence adduced and the offence charged in the application or order.


When formal objections to be taken

(1) An objection to an indictment for a formal defect apparent on its face must be taken, by demurrer or motion to quash the indictment, before the jury is sworn.

(2) The court before which the objection is taken may cause the indictment to be amended and, in that case, the trial is to proceed as if there had been no defect.


Judgment on demurrer to indictment

The judgment against the accused person on demurrer is to be that the person "answer over" to the charge.


Signing of indictments

(1) An indictment shall be signed--

(a) by the Attorney General, the Solicitor General or the Director of Public Prosecutions, or

(b) for and on behalf of the Attorney General or the Director of Public Prosecutions by--

(i) a Crown Prosecutor,

(ii) a Deputy Director of Public Prosecutions, or

(iii) a person authorised under subsection (2) to sign indictments.

(2) The Director of Public Prosecutions may, by order in writing, authorise a person to sign indictments for and on behalf of the Director.

(3) It shall be presumed, in the absence of evidence to the contrary, that an indictment signed by a person for and on behalf of the Attorney General or the Director of Public Prosecutions was signed by a person authorised to do so.

(4) A certificate signed by the Director of Public Prosecutions to the effect that a specified person was authorised during a specified period to sign indictments for and on behalf of the Director is admissible in evidence in any legal proceedings and is evidence of the matters certified.


Plea of "not guilty"

If an accused person arraigned on an indictment pleads "not guilty", the accused person is taken to have put himself or herself on the country for trial, and the court is to order a jury for trial accordingly.

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