Charges drafted at a police station are not always accurate. The Act takes a practical view: minor errors are corrected, not fatal. But the tolerance has limits, and knowing where they lie matters to both sides.
No objection for want of form
No objection shall be taken or allowed to an information, or to a summons or warrant to apprehend a defendant issued on an information, for an alleged defect in the information in substance or in form, or for a variance between it and the evidence in support of the information, and any such variance may be amended by order of the Court at the hearing.
Three kinds of problem are covered: a defect of form (the wrong form used, a heading missing), a defect of substance (a wrong date, a wrong place, a mis-described item of property), and a variance between what is charged and what the witnesses say. All three may be amended at the hearing. Section 34 requires the order for amendment to be entered on the proceedings, with a minute given to the party affected if required.
If the defendant has been misled
If a variance appears to the Court to be such that the defendant has been deceived or misled by it, the Court may, and at the request of the defendant shall, adjourn the hearing of the case, on such terms as it thinks just, to some future day, and in the meantime may commit the defendant or discharge him on bail on recognizance for his appearance at the adjourned hearing.
This is the defendant’s protection. A defendant who came to court to meet a charge of assault on 3 March and finds the prosecution proving an assault on 10 March is entitled, on request, to an adjournment to prepare. The adjournment is mandatory once requested; the terms, including costs of the adjournment under section 260(1)(e), are for the Court.
What cannot be cured by amendment
In Ganta v Nandi [1973] PNGLR 61 Frost SPJ held that a power of amendment does not extend to a complaint which does not disclose an offence, because such a complaint confers no jurisdiction on the court to begin with. The charge there omitted the elements of “in a public place” and “without lawful excuse”, and a plea of guilty to it was quashed.
The Magistrates’ Manual draws a second line: where the evidence establishes a different offence from the one charged, rather than the same offence with a variance in its details, the defendant is entitled to be acquitted on the charge laid. The magistrate has no power to amend an information so that it alleges a different offence. The prosecution’s remedy is to lay a fresh information for the offence the evidence supports, subject to the time limit in section 36, and the Court should adjourn to give the defendant time to meet it.
| Defect | Amendable? |
|---|---|
| Date of offence stated as 3 March; evidence shows 4 March | Yes: a variance under s 32; adjournment under s 33 if the defendant was misled |
| Property described as “a red bilum”; evidence shows a blue one | Yes |
| Wrong section number cited but the facts alleged plainly constitute the offence | Generally yes; the description in the words of the Act is what s 30(2) requires |
| Charge omits an essential element, so no offence is disclosed | No: Ganta v Nandi |
| Charge is assault; evidence shows only threatening words | No: a different offence; fresh information required |
| Information laid outside the s 36 time limit | No: a jurisdictional bar, not a defect of form |
Mistakes discovered after conviction
The Act contains several provisions that save a conviction from a defect discovered later. Section 163 provides that a conviction or order is not void or liable to be quashed for a defect or error in form or substance if the National Court is satisfied that sufficient grounds were in proof to have authorised it, and the National Court may amend it. Section 240 applies the same principle on habeas corpus and certiorari, and section 244 on appeal, where the depositions in substance support the decision. Section 245 sustains a conviction against a defendant who was present at the hearing and did not object that there was no information, complaint or summons. Section 207 saves a warrant of commitment or execution that has a good conviction behind it.
Objections to the charge are best taken at the outset, before the plea. A defendant who pleads and takes part in the hearing without objecting will find that sections 163 and 245 stand in the way of any later complaint about form, and on appeal section 230(2) requires a substantial miscarriage of justice, which a curable variance will rarely be.
Amendment in civil cases
The civil equivalents are section 133(4), which allows particulars of demand or set-off to be amended at any time before an order is made, and section 138, which allows amendment of the summons at the hearing so as to determine the real questions in controversy. See amending a civil claim.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.