Skip to Content

Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Watts and Adams, 1827

highway robbery - jury, hung jury - nolle prosequi - sentencing discretion - death recorded

Supreme Court of New South Wales

Forbes C.J., 26 November 1827

Source: Australian, 28 November 1827


John Watts and William Adams, were indicted for robbing Charles Silk on the highway.  The prosecutor lives at South Creek.  On the 16th of October last, whilst travelling between the South Creek and Windsor, he was stopped and knocked down by the prisoner Watts, and robbed of his watch and money.  The other prisoner stood away at a short distance and witnessed the outrage.  Watts, afterwards, confessed to having committed the robbery, and restored the plunder, but excused himself for the act, by saying he was drunk at the time he met the prosecutor, and therefore picked up a quarrel with him, but declared he picked the money up on the road.  The other prisoner protested his innocence of the charge alleged against him.

The Judge having summed up, the Jury retired to their room, where they remained upwards of an hour and a-half, but being still unable to agree in their verdict respecting the prisoner Adams, the Crown Officer intimated that he would not press the Jury any further as regarded that prisoner, but would enter a nolo prosequi[ 1] [sic] upon the indictment, and take the verdict of the Jury against the other prisoner.  Verdict - Watts guilty.[ 2]  Adams was, upon this, discharged.



[1 ] Nolle prosequi: unwilling to proceed.  Decision by the Attorney General or prosecutor that the prosecution will not proceed.

[2 ] The sentence Watts received was death recorded: Sydney Gazette, 3 December 1827; Australian, 6 December 1827. Death recorded meant a formal sentence of death, without an intention that the sentence would be carried out.  Under (1823) 4 Geo. IV c. 48, s. 1, except in cases of murder, the judge had considerable discretion where an offender was convicted of a felony punishable by death.  If the judge thought that the circumstances made the offender fit for the exercise of Royal mercy, then instead of sentencing the offender to death, he could order that judgment of death be recorded.  The effect was the same as if judgment of death had been ordered, and the offender reprieved (s. 2).

The issue of a hung jury was also considered in R. v. Cribb, 22 November 1830, Dowling, Select Cases, Archives Office of New South Wales, 2/3466.  Justice Dowling recorded the following at pp 35-36: "When the Jury cannot agree upon their verdict in a criminal case after being charged with a prisoner they cannot be discharged from giving a general verdict without the consent of the Crown and the prisoner.  A Jury in a criminal case allowed refreshments at their own expense during a long retirement but not to separate [sic]."

Published by the Division of Law, Macquarie University