R v Johal
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KARMINSKI,MR. JUSTICE ASHWORTH |
| Judgment Date | 03 March 1972 |
| Judgment citation (vLex) | [1972] EWCA Crim J0303-9 |
| Docket Number | No. 3001/A/71 |
| Court | Court of Appeal (Criminal Division) |
| Date | 03 March 1972 |
[1972] EWCA Crim J0303-9
Lord Justice Karminski
Mr. Justice Ashworth
and
Mr. Justice Hinchcliffe
No. 3001/A/71
No. 3002/A/71
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. B.A. FARRER appeared as Counsel for the Appellants.
MR. A.R. ARNEIL appeared as Counsel for the Crown.
Mr. Justice Ashworth will read the Judgment of the Court.
These two appellants appeared at Birmingham Assizes in June 1971 charged with a number of offences involving respect of each of them more than one indictment. This appeal is concerned only with the first indictment which in its original form contained only two counts: the first count charged them jointly with wounding with intent, the second charged them jointly with unlawful wounding. On this indictment they were duly arraigned and each pleaded not guilty; this occurred on the afternoon of the 14th June, and apart from arraignments on the other indictments, nothing further occurred on that day.
On the following day, before the trial of the appellants on the first indictment began and indeed before a jury had been empanelled. Mr. Farrer who appeared for both appellants sought directions from the learned Judge in regard to statements, alleged to have been made by the appellants respectively, in which each purported to blame the other for wounding the victim. The learned Judge ruled that the statements were admissible adding, as might be expected, that he would give a careful direction to the jury to the effect that neither statement could be treated as evidence against the co-accused referred to in it.
Thereupon, Mr. Arneil for the Prosecution applied for leave to amend the indictment by adding four further counts: in two of them he proposed to charge the appellant Johal alone with wounding with intent and with unlawful wounding, and in the other two he proposed to charge the appellant Ram alone with the same offences. The application was strenuously resisted but in the end the learned Judge granted leave to amend the indictment in the manner sought. The appellants were then arraigned on the further counts and each pleaded not guilty to the charges relating to him. A jury was then empanelled and the trial proceeded.
In the course of argument regarding the proposed amendment, Mr. Farrer applied that there should be separate trials of the two appellants, but this application was refused.
Eventually the Jury found each appellant not guilty on the first two counts (alleging joint offences) but found each guilty of unlawful wounding on the count charging him alone with that offence.
The main issue in this appeal is whether the learned Judge had power to allow the indictment to be amended, after arraignment, by the addition of further counts. A further issue was raised by Mr. Farror, namely, whether the learned Judge was right to refuse the application for separate trials.
It is convenient to dispose of that further issue first. Mr. Farrer conceded that it was a matter within the learned Judge's discretion and it is to be noted that when refusing the application the learned Judge expressly stated that he was doing so in the exercise of his discretion. In the judgment of this Court he was fully justified in taking the course which he took and there is no reason to set aside the conviction of either appellant on this ground.
The main issue raises a far more difficult problem, upon which there is no direct authority, although views have been indicated about it in earlier cases. The relevant statutory provision is to be found in section 5 (1) of the Indictments Act 1915, in the following terms:- "Where before trial or at any stage of the trial it appears to the Court that the indictment is defective the Court shall make such order for the amendment of the indictment as the Court thinks necessary to meet the circumstances of the case, unless having regard to the merits of the case the required amendments cannot be made without injustice". In passing, it is to be noted that the subsection expressly provides for amendment at any stage of a trial: there is nothing in it precluding amendment after arraignment.
In the two earliest cases cited by Mr. Farrer, Errington (16 C.A.R. 148) and Jennings (33 C.A.R. 148) amendments were held to have been wrongly allowed on the ground that the accused would be prejudiced thereby. On the other hand, in Smith (34 C.A.R. 168) the amendment was upheld and in the course of...
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