It is the frustration shared by all criminal defence lawyers! You have a client charged with certain offences and then, as the proceedings progress, the prosecution or police add or change charges.
Whilst accused people can claim costs as a result, most of the time police are entitled to add or change charges.
In some cases, the police or prosecution can lay charges which result in the proceedings being uplifted from the summary to the indictable stream, thus increasing the seriousness of the charges and potential penalties. You can read more about how serious criminal matters progress through the courts in our guide to understanding the criminal process.
Having criminal charges changed or added can be a very stressful event for an accused person and can seem very unfair. However, whilst there is a general power to change or add charges, there are certain exceptions.
The following are the main exceptions to the police or prosecution’s ability to add or change charges.
1. Can police add or change charges during a trial?
Once an accused person has been arraigned before a trial, the charges cannot be changed without the leave of the court.
An arraignment occurs where an indictment, containing the charges to which the accused will plead guilty or not guilty, is read out to the accused and they enter their plea. If they plead ‘not guilty’ and proceed to trial, the police cannot add or change charges in order to somehow obtain an advantage against the accused as they watch the trial unfold.
There are a number of important procedures that occur before a criminal trial begins. For more information, see our guide to pre-trial procedures in Victoria.
Of course, this rule does not apply if the accused person has given evidence and can be proven to have perjured themselves. However, if this occurs, they would be tried separately on that charge.
2. Is there a time limit for police to lay or change summary charges?
Summary offences carry a statute of limitations period.
Pursuant to section 7 of the Criminal Procedure Act 2009 (Vic), a proceeding for a summary offence must be commenced within 12 months after the date upon which the offence is alleged to have been committed.
However, if the accused gives written consent, and the prosecution consents, a proceeding can be commenced after the expiry period.
Often consent will be given in order to pursue a plea deal where the accused is prepared to plead guilty to a lesser charge in circumstances where the police are unable to lay the charge because of the expiry of the statute of limitations. Having an exception that allows for the parties to consent allows for resolution of matters which may not otherwise resolve.
What are summary offences?
Summary offences are low-level offences, usually governed by the Summary Offences Act 1966 (Vic). They include offences such as low-level assaults, disorderly behaviour, criminal damage and low-level sexual offences.
Where a matter is proceeding in the summary stream, discussions with police prosecutors can also play an important role in determining how the charges ultimately proceed. Read more about case conferencing with police prosecutors and how the negotiation process can work.
3. Can double jeopardy prevent new charges being laid?
In some unusual cases, a defendant can rely on the principle of ‘autrefois convict’ or double jeopardy.
What does ‘autrefois convict’ mean?
The principle of ‘autrefois convict’ is founded upon an argument by an accused person that they have already been tried and convicted for the same offence and therefore cannot be retried.
For example, say a person is charged with drug trafficking from their home between 10 January 2026 and 15 January 2026. They negotiate a plea of guilty which will encompass the entirety of the trafficking conducted from their home between 10 January 2026 and 15 January 2026 in complete satisfaction of the prosecution against them. The quantum of drugs is 200g.
After they plead guilty and are sentenced, the police realise that there was evidence that they trafficked 500 grams and not 200g. The principle of autrefois convict prohibits them from laying a further charge.
What is double jeopardy?
Double jeopardy prohibits a situation where a person has been tried for a crime and either convicted or acquitted and then, at a later stage, the prosecution seeks to try them for the same crime again.
This is to stop the prosecution from continuing to try people over and over for the same crime hoping for a different result.
The only circumstances where the prosecution may re-try a person is if the trial did not reach a verdict, or was aborted, or where fresh evidence has arisen since the conviction.
However, the prosecution would need the leave of the Supreme Court in order to circumvent double jeopardy and the law is very strict in this regard, meaning that, to date, we have been unable to find a case where it has happened.
What should you do if police add or change your charges?
It is important to remember that, just because the police or prosecution add or change charges, it doesn’t mean that they will be able to prove those charges beyond a reasonable doubt. Each case falls to be decided on its own facts.
Changes to the charges can affect how a case proceeds, the court in which it is heard and the issues that need to be addressed as part of the defence. It is therefore important to understand exactly what has changed and what that means for your case.
Galbally Parker has represented people facing serious and complex criminal charges since 1976. Our experienced criminal defence lawyers can review the charges and evidence against you, explain the implications of any new or amended charges, communicate with the prosecution and develop a defence strategy based on the circumstances of your case.
If police or prosecutors have added or changed your charges, or you are concerned about how your criminal matter is progressing, contact Galbally Parker to arrange a confidential consultation with an experienced criminal defence lawyer.