I am sorry I cannot accept the amendment. If, as the Deputy says, a defect comes to be corrected, this defect is corrected, not by prosecuting counsel but by the court at the request of the prosecuting counsel and in the presence of the accused and provided that the court is satisfied that no injustice results. I am in sympathy with the Deputy's purpose in moving this amendment. My reason for not accepting it is that the amendment is not necessary in order to carry out the purpose it seeks to achieve.
Deputy O'Malley's purpose is to ensure that the accused will not be prejudiced or taken by surprise when he appears before the higher court if any change is made in the charge against him. It would be wrong if he suffered by reason of any disadvantage coming to him in this regard but there are two cases here. The first is where he waives his right to a preliminary hearing and goes forward for trial on a plea of not guilty. In this case there is an indictment. All that section 2 does is to allow the prosecution, when stating the charge on the indictment, to correct any defect on the charge which was before the District Court.
It is not the prosecution who corrects the indictment, it is the court who is responsible for the correction of it on the application of the prosecution. The court will refuse that application if an injustice is being done to the accused. Likewise, it would be impossible for this change to take place without the accused knowing. It is possible, if the accused was not legally represented, that he would not know the import or perhaps the significance of it, but the court is present and the court is constrained to hold the balance between the parties, and it does so. The court would only permit the defect to be remedied provided there was no injustice to the accused. This is written into the section.
It is parallel to the situation where there has been a preliminary examination and a return is being made in accordance with section 18 of the Criminal Procedure Act, 1967. A return under that section permits, not merely the curing of a defect in the charge, but actually permits the substitution of counts for existing counts or the insertion of totally new counts. This is a much stronger provision which is already in this particular legislation and has not worked any hardship to an accused person.
Where a person pleads guilty in the District Court and has been sent forward for sentence, in this case there is no indictment. The charge before the Circuit Court is the charge which was before the District Court. If there is a defect in it, bearing in mind that many of these charges are drafted by persons without legal training, drafted by the police, in order to do justice to both parties before the court, to the State and to the accused, it will be necessary to cure this defect.
However, the overriding safeguard is there that the defect is cured by the court on the application of the prosecution or the defence. It could work both ways, but the court must be of the opinion that no injustice results. I am satisfied that the amendment is unnecessary and that it would be inappropriate to have any statutory requirement of notice of the proposed correction. The power given is only power to correct a defect in the charge, not to change it, add to it or take from it, purely a technical defect.
Where there is a plea of guilty to the original charge if the accused so wishes he is entitled to withdraw this and enter a plea of not guilty, and he cannot be criticised for doing this. There is no inhibition whatever in doing that. Another consequence of this Bill is that legal aid is now provided at the deposition stage and at the Circuit Court stage on a plea of guilty so that it is unlikely that persons will not be represented at that stage. They will have the benefit of legal advice to advise them where an application has been made to correct a charge.
The court already has its own inherent power to ensure that the correction does not adversely affect the accused. I am satisfied that there is no danger to the rights of the accused person. I sympathise with the Deputy's motives in bringing forward this amendment but I cannot accept it because I am satisfied that it is not necessary.
