GABIENOO v. THE REPUBLIC

In an appeal presided over by Francois J., the court examined whether it could correct ambiguity in the second count of a criminal charge against Mikodome Kofi Gabienoo. The particulars of that count used the singular “you” even though there was a co-accused who had been acquitted, creating uncertainty as to whether the count addressed Gabienoo, the other accused, or both. The judge considered amending the particulars proprio motu to insert Gabienoo’s name and observed that such an amendment would neither surprise nor prejudice him, nor depart from the charge he faced. However, with the first count having “fallen by the wayside,” authoritative precedent constrained the court’s discretion. R. v Michalski (1955) 39 Cr. App. R. 22 held that striking out or altering the name of an arraigned prisoner under the guise of amendment is objectionable and irregular. The court therefore declined to amend the second count, clarifying limits on judicial amendment of charging particulars in criminal proceedings.