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Amending kidnapping charge during trial did not prejudice defendant, court says

26 May 2023

| Author: Fiona Wu

Unsuccessful appeal against conviction – whether kidnapping charge amended unfairly during trial – Criminal Procedure Act, ss 136 and 232(4) – R v Johnston [1974] 2 NZLR 660 (CA) upheld – Stevens v R [2022] NZCA 275 considered – no prejudice to L with amendment of charge – charge of kidnapping involving taking away will include detention – ground of appeal fails

Lee v R [2023] NZCA 147 per Clifford, Dunningham and Cull JJ

The appellant, Anthony Lee, was found guilty following a jury trial on multiple charges, including two charges of kidnapping. Lee appeals his conviction, primarily on the ground that the amendment of the charge during trial prejudiced his defence.

A kidnapping charge under s 209 of the Crimes Act 1961 can arise where a defendant unlawfully “takes away” or  “detains” a person without his or her consent.

The Crown case against Lee initially proceeded on the basis that the form of kidnapping was “taking away”. The complainant’s evidence was that she got into Lee’s van as he told her he would take her home, whereas Lee’s case was advanced on the basis the complainant got into his car willingly and was fully aware he had no intention of taking her home. There was no dispute the complainant tried to open the door and jump out at times when the car was moving at speed.

Following the Crown’s closing, the judge indicated he intended to amend the kidnapping charge to one of “detention” instead, due to the “way the evidence has come out”. Both Crown and defence counsel agreed the amendment created no prejudice.

On appeal, Lee suggests that had the case been cast as one of “detention” at the outset, more focus would have been given to what happened inside the car after the complainant got in.

The issue for the Court of Appeal was whether the defence was prejudiced by the amendment. Such prejudice may occur where counsel has prepared and presented the case in accordance with a theory that is no longer appropriate and counsel cannot recast the case to meet the amended charge. It is not prejudicial simply because the amendment better fits the evidence that emerged at trial and so makes the charge easier to prove.

For two reasons, the Court of Appeal found no such prejudice existed. First, there is no suggestion that further questioning on what happened in the car would have elicited more information; trial counsel could have sought to recall the witness and did not do so. Second, there is little difference in the evidence required to establish (or, conversely, cast reasonable doubt on) guilt under either the “taking away” or “detention” scenario; the defendant could have relied on the same evidence notwithstanding the amendment.

Held: There was no prejudice to the appellant arising from the amendment of the charge. This ground of appeal fails.

Lee v R [2023] NZCA 147

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