1703.
No. 203.
(VICTORIA.)
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PUBLIC RECORD OFFICE
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Reference :-
PC.O.
.885
SIR,
LAW OFFICERS TO COLONIAL OFFICE.
Royal Courts of Justice, WE were honoured with your commands signified in Sir Edward Wingfield's
20th January, 1899. letter of the 17th instant, stating that he was directed by you to transmit to us a copy of a telegram which had been received from the Governor of Victoria asking that Her Majesty might be moved to grant a pardon to a police sergeant in Melbourne and a woman employed by the police who were indicted for conspiracy to induce certain persons to procure abortion.“
That this telegram contained all the information which at present was in your possession, and that it would be seen that a grand jury summoned for the purpose of considering the case under the provisions of Section 389 of the Crimes Act, 1890, had returned a true bill in the case of a prosecution by or at the instance of certain persons convicted of performing an illegal operation, whose guilt was proved by means of a trap laid for them, with the cognizance of the superior officers of the Melbourne Police, by the persons now charged with conspiracy.
That Section 391 of the Crimes Act, 1890, of Victoria, empowered the discharge of a person committed for trial on the certificate of the Attorney-General addressed to a judge of the Supreme Court, to the effect that he declines to file a presentment against such person, but, having regard to the forms given in the fifth and sixth schedules to that Act, that it would seem to be doubtful whether this power could be exercised in the case of a prisoner who had not been committed for trial on the warrant of a magistrate.
That under the provisions of Section 24 of the Imperial Statute, 9 Geo. IV., c. 83, the laws in force in England at the time of the passing of that Act were continued in force in the Australian Colonies in that Act referred to, and that by Section 41 of the Victoria Constitution Act which formed Schedule (1) to the Imperial Act, 18 and 19 Victoria, cap. 55, those powers were preserved. That consequently it would appear that the power of the Attorney-General in England to enter a nolle prosequi in the case of a prosecution commenced by a private individual might exist in Victoria concurrently with the power to direct the discharge of a prisoner from custody under the Crimes Act, 1890, passed by the Colony. That the powers of the Attorney-General in England, in this respect, were considered in the case of Regina ». Allen, in 1862 (1B and S. 850).
That the Letters Patent of February 21st, 1879, by Clause IX., conferred on the Governor the power to grant a pardon to any accomplice who gave such information as led to the conviction of the principal offender, and also to pardon offenders convicted of crime by the Courts of the Colony. That the Instructions of July 9th, 1892, prescribed (Article VIII.) the manner in which this power was to be exercised,
That the Colonial Government asked that Her Majesty might be advised to grant a pardon before conviction to the persons now awaiting trial. That you were not aware of any precedent in recent times for the adoption of such a course, and that you were indisposed, even if it were legally permissible, to advise Her Majesty in this sense, inas- much as the jury might acquit the prisoners, while, if they should be convicted, the Governor would have power to grant a pardon in the Colony.
That it appeared, moreover, to you that any such advice on the part of Her Majesty's Government would be liable to be misrepresented, and could only be tendered, if at all, after a full and exhaustive examination of all the circumstances of the case which upon the materials at present available was impossible.
That Sir Edward Wingfield was to request us to take these matters into our consideration, and to advise you-..
(1) Whether under Section 391 of the Crimes Act, 1890, of Victoria, the Attorney- General of the Colony had power to grant a certificate for the discharge from custody of the prisoners now awaiting trial.
(2) Whether independently of the provisions of the Victoria Crimes Act. 1890, the Attorney General of Victoria has power to enter a nolle prosequi with respect to the charges brought against the prisoners.
1639-25-199 Wt 2311 DES
14 PUBLIC RECORD OFFICE, LONDON
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