WEDNESDAY, MAY 6, 1992
BILL TO CHANGE AG'S POWER TO ISSUE NOLLE PROSEQUI
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BILL
RESPECT OF
THE ADMINISTRATION OF JUSTICE (MISCELLANEOUS AMENDMENTS) 1992 INTRODUCED INTO THE LEGISLATIVE COUNCIL TODAY WILL REMOVE THE ATTORNEY GENERAL'S POWER TO ISSUE A NOLLE PROSEQUI IN OFFENCES THAT CAN BE TRIED ONLY SUMMARILY.
VENUE OF
THE BILL WOULD FURTHER PROVIDE A PROCEDURE WHEREBY TRIAL MAY BE CHANGED BETWEEN THE MAGISTRATES COURT, DISTRICT COURT AND HIGH COURT, SAID THE ATTORNEY GENERAL, THE HON JEREMY MATHEWS, WHEN MOVING THE SECOND READING OF THE BILL.
MR MATHEWS SAID THE ATTORNEY GENERAL HAD A COMMON LAW RIGHT TO DISCONTINUE A CRIMINAL PROSECUTION IN THE HIGH COURT BY ENTERING A NOLLE PROSEQUI AND HAD SIMILAR STATUTORY POWERS IN THE DISTRICT AND MAGISTRATES COURTS,
A NOLLE PROSEQUI WOULD TERMINATE CRIMINAL PROCEEDINGS, BUT WOULD NOT OPERATE AS AN ACQUITTAL, AND PROCEEDINGS MIGHT BK RECOMMENCED AFRESH FOR THE SAME OFFENCE.
"THE BILL ARISES FROM THE REVIEW OF THE NOLLE PROSEQUI PROCEDURE ΤΟ WHICH I REFERRED WHEN ANSWERING A QUESTION ON NOLLE PROSEQUI IN THIS COUNCIL ON JANUARY 18, 1989," MR MATHEWS SAID.
"IN THE LIGHT OF THAT REVIEW, HE SAID, "THE ATTORNEY GENERAL'S POWER TO TERMINATE CRIMINAL PROCEEDINGS BY WAY OF NOLLE PROSEQUI IS NOW EXERCISED BY ME PERSONALLY.
CLAUSE 13 OF THE BILL PROPOSED то ABOLISH THE ATTORNEY GENERAL'S POWER то ENTER A NOLLE PROSEQUI IN PURELY SUMMARY PROCEEDINGS.
THERE WERE TWO REASONS FOR THIS. FIRST, IT WAS ALREADY POSSIBLE FOR THE PROSECUTION TO WITHDRAW A SUMMONS WITH THE COURT'S LEAVE PRIOR TO PLEA, AND THEREAFTER ISSUE A REPLACEMENT SUMMONS IF NECESSARY.
SECONDLY, THE PUBLIC INTEREST WOULD BE BETTER SERVED BY FINALITY OF PROCEEDINGS RATHER THAN BY PERMITTING THE PROSECUTION TO PRESERVE ITS POSITION UPON MINOR OFFENCES AFTER PLEA.
THE PROPOSED ABOLITION WOULD NOT APPLY TO INDICTABLE OFFENCES BEING TRIED SUMMARILY.
THERE WERE THREE BROAD CATEGORIES REGARDING THE CIRCUMSTANCES IN WHICH THE ATTORNEY GENERAL WOULD CONSIDER USING A NOLLE PROSEQUI.
FIRSTLY, WHERE FOR HUMANITARIAN GROUNDS, IT WOULD BE OPPRESSIVE TO CONTINUE WITH A PROSECUTION. THIS MIGHT ARISE WHERE A DEFENDANT WAS TERMINALLY ILL.
SECONDLY, WHERE ANTICIPATED PROSECUTION EVIDENCE WAS NO LONGER AVAILABLE FOR THE COURT, BUT AN ACQUITTAL WAS NOT WARRANTED. THIS MIGHT ARISE WHERE A PROSECUTION WITNESS HAD BEEN INTIMIDATED TO ABSENT HIMSELF.
/LASTLY, WHERE
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