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The Requirement for “Particulars” in Criminal Law Cases in the ACT
Andrew Byrnes Law Group • Aug 11, 2020
One of the hallmarks of Australian criminal law is the right of every person to due process, procedural fairness, and the right to understand the case being brought against them. Any individual accused of an unlawful act has the right to know the details that lay the foundation for the charge. Details of the alleged offence—the time and place it happened, along with the manner the act was carried out—must be provided to the person accused.
The prosecution must furnish the accused with an indictment that identifies the alleged offence, including the way the individual is said to have committed the crime. However, the prosecutor is not required to frame the charge in highly specific terms.
What it boils down to is the prosecution is obliged to allow the accused person to understand the case they are being asked to meet. The degree to which particulars of the allegations are adequate or inadequate will depend on a case by case basis.
In this article, we discuss particulars in a criminal law proceeding and why they are an often overlooked aspect of criminal defence representation.
Why particulars matter in presenting a case
The accused and the prosecution on the case must have enough working knowledge of the specific allegations against the accused person to ensure a fair trial. There are no set guidelines for particularisation since the approach varies depending on the circumstances of the offence.
Having inadequate particulars risks compromising the verdict of a jury. Juries must clearly understand the facts that they have to agree upon, and lack of specificity creates no unanimity. Individuals on the jury panel might disagree based on inadequate particulars whether the offences occurred.
Particulars are also important in assessing (and hopefully avoiding) a charge being duplicitous in nature. A duplicitous charge is one which alleges more than one possible way that the accused person can be guilty of an offence. If a charge is duplicitous, the result if that person is found guilty or pleads guilty to a duplicitous charge is that the sentencing result may be one plagued with latent ambiguity, that is, uncertainty about what particular conduct or allegation they are receiving a penalty for. This is a legal error which it is very important to avoid in fairness to the accused person.
It is also not the judge’s role to provide the jury with a narrative that explains the relevance of the witness testimonies to the particulars of the allegations; that is the prosecutor’s task. The judge must be neutral.
Furthermore, the particulars should be in plain language, free from technical terms. The prosecution must also specify if the accused allegedly committed an offence as an accessory. This helps the jury frame the evidence appropriately in their deliberations.
Date, time, and other particulars
Errors in the numbering on an indictment will not necessarily result in the miscarriage of justice. However, a mistake in the section number can be significant if it creates ambiguity about which offence the accused allegedly committed. If the section number and the description of the crime do not match, the court may resolve this by ordering an amendment of the charge sheet.
Also, the prosecution must specify the time and date that the alleged offence happened, when available. The date the act was said to have been committed may sometimes be an element of the offence.
If not stated in exact terms, the prosecution can allege that the act happened between specific dates. Should the evidence prove that the accused committed the offence but outside the dates specified, it is possible he may still be convicted.
Generally, the date of an offence is an essential element when the passing of time takes away the liability of the accused. Statutes of limitations and amendment to relevant laws are factors affected by the date of the alleged crime.
Another example of a case where the date matters are ones in which the complainant’s age is an element. The date also matters if it creates an alibi for the defendant.
Conclusion
Both parties have the right to a detailed picture of the particulars of a case. Having this on the indictment helps the defendant build a clear case for himself and guides the jury in reaching a clear decision.
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