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

R. v. Taylor and Farrell (1828) NSW Sel Cas (Dowling) 295; [1828] NSWSupC 67

nolle prosequi, criminal procedure, sentencing discretion

Supreme Court of New South Wales

Dowling J., 28 August 1828

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[p. 328]

[After a prisoner has pleaded to one indictment the Attorney General may with leave of the Court, enter a noli prosequi,[1 ] and indict the prisoner again for the same offence.]

 

Thursday 28th August 1828

Before Dowling J

Rex v Taylor & Farrell

Indictment, that on the 11th April 1828 at Sydney, prisoners with force and arms one gold watch val 20£ 3 silver do.13 Watch Chains 20£ and other articles the goods of Henry Marr in his dwelling house of him said Henry Marr then and there being found, and then and there by one Wm Regan now deceased stolen taken and carried feloniously did receive the same, Prisoner well knowing the said goods and chattels to have been feloniously stolen taken and carried away

2d Count.  That prisoner on same day the same goods, by a certain evil disposed person, yet unknown, did receive the same knowing them to have been stolen taken and carried away.

[p. 329]  The prisoners had been arraigned on the 27th inst. upon another information and had pleaded thereto, but was not tried thereon.

Attorney General moved for leave to enter a nolle prosequi upon that information, notifying that he intended to file another information.

Rowe objected to this as irregular the prisoner having already pleaded to an information.

Dowling J however ruled that it was competent to thereby to enter a nolle prosequi.  The prisoners had not been in jeopardy on the first information, and therefore with the leave of the Court a nolle prosequi might be entered and a fresh information filed.

Ordered

The prisoners were then arraigned upon the information and pleaded Not. Guilty. thereto.[2 ]

Notes

[1 ] Nolle prosequi: unwilling to proceed.  A decision by the prosecutor, made after the indictment was presented to court, not to proceed with the prosecution.

[2 ]The prisoners were then tried, and found guilty: Sydney Gazette, 29 August 1828.  Taylor was sentenced to transportation for 14 years, and Farrel for 7 years: Australian, 10 September 1828.  The Court refused to take into account that Taylor had a wife and two infant children, saying that he should have thought of that before the crime.  Farrell received a shorter sentence because of the strength of character testimonials from "a respected officer".

Published by the Division of Law, Macquarie University