R v Schipp

The question which arose before the Court of Appeal was whether or not it was possible for the Crown to enter a nolle prosequi after the accused had pleaded guilty to the offence. The matter arose where the appellant had been charged with his co-accused of one count of malicious act with intent and one count of willful damage. The appellant pleaded guilty to the offences after which the allocutus was administered. The proceedings against the appellant were adjourned pending the completion of the trial against the co-accused. Thereafter, the Crown entered a nolle prosequi on the indictment in relation to the second charge as against the co-accused and the co-accused was found not guilty of the remaining charge. The Court of appeal held that:

• Whilst a literal interpretation the language of s 563 of the Criminal Code might suggest that the appellant was discharged from any liability by reason of the entering of the nolle prosequi on the indictment, the section requires that the written notice be given to the Court and that requires delivery with the requisite intention. That did not occur in the present case.
• It is well established that the administering of the allocutus is the Court’s acceptance that the guilt of the accused. It follows that it would be anomalous to treat the prosecution as retaining power to enter a nolle prosequi after the conviction has occurred and, it follows, that the Crown does not retain the power to decide not to proceed further in the matter by recording its own decision which is not consistent with the verdict.
• Once a verdict has been given there is no power in the Crown to start proceedings again, and it follows that the power to enter a nolle prosequi ceases as well.