Where an indictment contains multiple counts under the same statutory provision and some counts properly plead all elements while others omit an element, the omitted element may be necessarily implied from the structure of the indictment as a whole, rendering the indictment valid rather than a nullity. The proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) is available where the indictment can be seen fairly to relate to and be intended to charge a known offence but pleads it imperfectly, provided the defect did not prejudice or embarrass the defendant. The question whether the proviso can apply to a truly null indictment remains open.
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