[forgery – nolle prosequi – witness, refusal to be sworn – court house]

R. v. Jones (No. 2)

Supreme Court of Van Diemen’s Land, Oatlands

Montagu J., 12 April 1841

Source: The Cornwall Chronicle and Commercial and Agricultural Register,

17 April 1841[1]

            His Honor observed that with that the court had nothing to do, and desired Mr. Barnes to take the oath. This he still persisted to refusing to do, stating that his reason for so doing was in consequence of understanding that the money given by him to Jones in payment for the forged cheque had been, at the request of Jones, and by order of the Attorney-General, given up to the prisoner for the purpose of feeing counsel for his defence.

            The Attorney General remarked, that if the money had been given up erroneously Mr. Barnes could recover it on application to the Government.

            His Honor very mildly pointed out to Mr. Barnes his remedy, and again urged upon him to take the oath, remarking that his conduct was extremely reprehensible, and that he was rendering himself liable to severe punishment.

            Mr. Barnes replied that he might as well lose his liberty as his money, and still persisting in refusing to be sworn, he was sentenced for his contempt to one year’s imprisonment, and ordered into the custody of the Sheriff.

            The Attorney General then moved to enter a nollque prosequit upon the information.

            Mr. Rocher, as counsel for Jones, submitted that the prisoner was entitled to his acquittal that he was given in charge to the jury the same as upon an indictment found by the Grand Jury, and was then upon his deliverance.

            His Honor remarked that it certainly was in the power of the crown to enter a nollque prosequi upon an information filed by the Attorney General in any stage of the proceeding, but that he viewed informations in this colony in the same light as indictments, and he felt assured that such was the construction which the statute intended them to bear. With this view he should direct the jury to acquit the prisoner, and a verdict of Not Guilty was returned accordingly. His Honor congratulated Mr. Rocher on the successful issue of the first case in which he had appeared in a court since his admission.

Notes