Nolle

Nolle (pronounced nol-ee)

In law, an oral and verbal shorthand for nolle prosequi (pronounced nol-ee pros-i-kwahy or nol-ee pros-i-kwee): an entry (historically a certificate) made upon the records of a court when the plaintiff or prosecutor will proceed no further in a suit or action. The official abbreviation is nol. pros.

1681:  From the Latin, the construct being nolle (unwilling) + prosequi (to pursue), literally “unwilling to pursue” which, in the context of legal proceedings, is a formal notice of discontinuance by a prosecutor or plaintiff.  Nolle was the present active infinitive of nōlō (I do not wish; I refuse), a formation based on ne- (not) +‎ volō (I want) or velle (will).  Prosequi was the present active infinitive of prōsequor (I escort, I pursue, I describe), the construct being prō- (forward direction, action) +‎ sequor (follow).  As a verb, nolle-pross is attested from 1880.

No-billing

The legal shorthand is “to nolle” but the more common expression is now “no-bill”.  The nolle prosequi is most familiar in criminal cases when it’s used by the state to discontinue prosecutions but some jurisdictions maintain the device in civil matters where it may used as a declaration by a plaintiff voluntarily withdrawing a claim although a retraxit (a motion for voluntary dismissal) is now a more commonly used procedure,

A nolle prosequi is not the same as a verdict of not guilty; it merely terminates the existing case and, as a general principle, doesn't disbar continuation of the case at a later date, if a prosecutor so empowered wishes.  However, the common law position has been modified in some jurisdictions to provide that if the attorney- general issues a certificate of nolle prosequi, no-one may prosecute the charges.  That exemption aside, anyone whose prosecution has been subject to a nolle prosequi is not “found not guilty” and therefore cannot plead autreufois acquit (a peremptory plea made before the commencement of a trial in which a defendant asserts they were earlier tried for the same crime under same facts of the case) in respect of the relevant offence at any subsequent resumption; as a general principle, double jeopardy cannot apply.

Attorneys-general in Australia have been reluctant to intervene in matters if they regard a request as political rather than technical or procedural.  In 1977, Bob Ellicott QC (b 1927), attorney-general in the second (1975-1980) Fraser administration, resigned rather than accede to the prime-minister’s request he take over a (somewhat bizarre) politically-inspired case and close down the prosecution (although in resigning he also cited the matter of costs).  In 2022 however, the new Australian Labor Party (ALP) attorney-general Mark Dreyfus (b 1956; Attorney-General of Australia 2013 & since June 2022) announced he had directed commonwealth prosecutors to nolle the prosecution of lawyer Bernard Collaery (b 1944), prosecuted for his part in exposing a bugging operation undertaken by agents of the Australian Security Intelligence Service (ASIS; the overseas intelligence organization) against Timor-Leste during negotiations over the ownership of oil and gas resources in the Timor Sea.

One must be sympathetic to any attorney-general who is expected to reconcile matters involving international relations (probably always somewhere within the rubric of “national security”) with legal or democratic principles.  The attorney sits atop the legal system in Australia, representing a government which insists all who appear in the nations courts must always speak the truth and imposes sometimes severe punishment on those who do not yet he was in the position of considering whether to continue the prosecution of someone who would be brought before one of those courts and accused of telling the truth.  It’s true that historically one has been able to fall foul of the law for telling the truth (such as in matters of defamation) but as a general principle courts do insist on hearing and protecting the truth.  National security matters are however a special case and there are also laws imposed on those working from agencies such as ASIS which prevent public or other disclosures, truthful or otherwise.

Bugging the government of another nation, perhaps especially an ally and close neighbor when the intelligence sought was essentially commercial, does raise ethical issues and also of note was that “Witness K” (who revealed the bugging) actually used proper channels to report what he regarded an inappropriate action he had been ordered to execute although, interestingly, a judge would during the course of the proceedings rule that it was not relevant whether or not the action undertaken by ASIS was lawful.  That may sound strange but in the context of national security matters and the details of the charges actually presented, it’s undoubtedly the correct ruling.  The competing principles displayed in the long tale illustrate why, in matters of national security, it pays not to be too bothered by (sometimes shifting) principles and focus instead on the essentially un-shifting interest of national security and there are precedents from the UK which support this view.  Everybody spies on everybody else and it’s usually the best course that these things remain secret; we have a right not to know.  No-billing the prosecution was surely the best thing to do but really, those who find distasteful the idea of bugging other people’s offices perhaps shouldn’t go into the spying business.

Certificate of nolle prosequi issued by the office of the South African Director of Public Prosecutions (KwaZulu-Natal Division) in response to complaint made by Jacob Zuma.

William (Billy) Downer (b 1956) is a retired South African prosecutor.  In an echo of the case (Sankey v Whitlam & Others, (1978) 142 CLR 1, (1978) HCA 43) which in 1977 Bob Ellicott declined to nolle, Mr Downer is privately prosecuting the former President of South Africa, party comrade Jacob Zuma (b 1942; President of South Africa 2009-2018) on charges of fraud and corruption.  Mr Zuma objected to Downer’s involvement in his case and claimed that the retired prosecutor acted unlawfully by leaking information to the media.  Despite a request from Mr Zuma, the Director of Public Prosecutions declined to prosecute Mr Downer, issuing a no-bill while noting this did not preclude the former president initiating a private prosecution; this, Mr Zuma has undertaken.  The first hearing of Mr Downer's case against Mr Zuma has been set down for August 2022.