Sometimes charges are laid that no longer exist (i.e. have been abolished by Parliament) or that do not reflect the circumstances of the alleged offending.
If a person is charged with robbery (defined as theft by intimidation or force) instead of theft in a situation when there is no evidence that there was any intimidation or force, then the defence of Incorrect Charges may be used.
If incorrect charges are laid then discussions are held with the Prosecution for the charges to be withdrawn. If they are not withdrawn then the matter may proceed to a contested hearing or trial on the basis that an essential element of the offending has not been met and cannot be proven beyond reasonable doubt by the Prosecution.
There are other circumstances this defence may be used, particularly in relation to alleged sex offences which occurred some time ago. Recent changes to the legislation mean that the prosecution will sometimes lay the more recent charge instead of the older one that applied at the time of the alleged offence.
This is always grounds for the immediate withdrawal of the charge, although depending on when the prosecution discover the error, it will often only result in the correct charges being laid.