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

Attorney General v Green [1833] NSWSupC 38

criminal procedure - autrefois acquit - new trial - non suit, cannot apply to Crown

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 1 June 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266[1 ]

[p. 53] This was an information against the Deft for penalties for violating the regulations of Port Jackson.  The Jury were sworn to try the case.  The Attorney General opened the case at length for the Crown, & when the witnesses were called to support the information (not one of them) five in number was in attendance, & as the Crown cannot be nonsuited, a verdict was entered for the Deft.

The Solicitor General now moved for a new trial, upon payment of costs, & produced affidavits accounting for the absence of two of the witnesses, who being custom House officers were engaged in public duty [p. 54] at the time the trial came on.  No excuse was offered for the absence of the other witnesses.

Norton resisted the application on affidavit of the Deft, that he had been prepared for trial on the day the case came on; & that since then two most material witnesses, who were seafaring men, had left the Colony.  If therefore the Court granted a new trial on the terms prayed, the greatest hardship & injustice would be worked to the Deft.

Per Curium.  There is no doubt that this Court is bound to uphold the just prerogatives of the Crown; but at the same time it must not be at the expense of injustice to the subject.  It is a general rule that the crown cannot be nonsuited.  It was the duty of the crown officers to have ascertained before the Jury were sworn, whether the witnesses were [p. 55] in attendance & they were not, then the record might have been withdrawn, & entered again at a future opportunity.  This course appears not to have been adopted.  The jury were sworn upon the issue joined between the parties.  The deft came prepared to meet the case on the day appointed for trial.  The case is opened at large, & the Crown not being then in condition to support it, the Deft was entitled to a verdict.  The Crown represents the public interests - & where its Engine is so powerful against a subject, the latter is entitled to every chance in his favour.  This is analogous with ordinary case in criminal proceedings where the Crown is the prosecutor.  The pris.r stands upon [p. 56] his deliverance, & if after the jury are sworn, & the case is opened without proof to sustain it, the prisoner is entitled to an acquittal as a matter of course.  In such case, no one ever heard of a prisoner being again put on a second trial for the same offence.  It is a general rule in the King's Bench at Westminster, never to grant a new trial where there is a verdict for the deft in cases in their nature criminal.  The only exception there is, the case of an indictment for not repairing a road, which in its nature regards a civil liability to repair.  No doubt in the Exchequer a new trial may be granted in a case where the real right & justice of it has not been determined; (Robinson v Lequesne Bunb. 253 pl. 323)  but that is where the case has been [p. 57] gone into upon evidence not affecting the justice of the case.  In refusing a new trial in this case, more good will be done, than if we introduced a very vicious precedent.  In such a case as this we are quite sure that the Court of Exchequer in Westminster would not grant a new trial on any terms.

Rule Refused.



[1 ] See also Sydney Herald, 10 June 1833; and Sydney Gazette, 4 June 1833; Australian, 7 June 1833 (application for new trial); and see Sydney Herald, 15 April 1833.  The Supreme Court refused the application for a new trial: Sydney Herald, 10 June 1833.  On customs duties, see Attorney General v. Dwyer, 1833; Attorney General v. Smyth, 1833.

On the court's procedure, see also R. v. Bowman, 16 February 1834 (Forbes C.J., Dowling and Burton JJ), in Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3276, vol 93, p. 16: there is nothing to stop the Supreme Court sitting as two judges simultaneously.

Published by the Division of Law, Macquarie University