The Greatest Miscarriage of Justice - Switching charges

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Saturday 11 April 2009

As soon as a person becomes involved in the criminal justice system they are entitled to know the offence being laid against them. While it is perhaps not immediate, as police are able to hold a person for a certain period of time for the purposes of questioning, it is a fundamental principle that a person should be informed of the charge or charges against them. The reason for this is that a person may be able to shed light on the situation that would avoid them being charged at all, but it also enables them, if they so desire, to start gathering evidence in their own defence.

Of course during an investigation, or after a person has been charged, further evidence obtained may result in different charges, additional charges or even the withdrawal of charges, however, at least in NSW, all of this is generally done well before the beginning of a trial. It is because at this stage, the beginning of a trial, an indictment is presented (which is the formal document presented to court) and it is on this document a person pleads guilty or not guilty. There is however, a wide power to amend the indictment at any time during the trial, but it requires either leave of the court (that is the court must allow it to be changed) or it requires the consent of the accused (section 21 of the Criminal Procedure Act 1986). Great care should be given as to whether an amendment may lead to injustice (R v Aldridge (1993) 67 A Crim R 371), but leave from the court should generally be granted “unless the accused would be irreparably prejudiced in meeting the charge as amended” (see R v Borodin).

While it is quite clear from the law in NSW that switching a charge mid-way through can lead to great unfairness, such unfairness was also recognised in first century Jewish law. The Mosaic law was based on numerous rules which included certainty in the indictment, the public nature of the discussion of the charges, and among other things the assurance against dangers and errors in testimony.

So to come to the actual charges laid against Jesus, as an earlier post indicated, Jesus was initially arrested without any charge or indictment at all. But the first allegation in his Jewish trial was a form of sedition in that he would destroy the temple and build it again in three days (Matthew 26:60-63). The indictment was then quickly changed to blasphemy after Jesus confessed to being “the Christ, the son of God” (Matthew 26:63-65).

Jesus was then handed over to the Romans for his civil trial, because although the Jews could hold trials and condemn people, they could not execute anyone – a right held exclusively by the Roman occupiers. So when Jesus eventually came before Pontius Pilate, the Roman procurator (the equivalent of a regional governor) he was charged with treason in that he was the King of the Jews, a rival of Caesar (Matthew 27:11-14). In fact it was this charge that they ultimate hung over his cross (Matthew 27:37). Whether it was actually sedition (leading a rebellion) or treason (betraying the emperor or empire), the charge changed according to the circumstances.

All of these were not just amendments of the indictment, but were completely different charges and it is hard to see how it wouldn't fail the NSW standard of having an indictment amended to the irreparable prejudice against the accused (Jesus). It also failed the Jewish standard in that it was neither certain, public or free from danger or error in testimony.

While the switching of charges achieved their ultimate purpose of having Jesus condemned, stay tuned for my next post on the irregularities in the actual verdict.


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