A nolle prosequi is a formal declaration by the prosecution that it will not proceed further with a criminal charge. The phrase is Latin for "we shall no longer prosecute." When a nolle prosequi is entered, the proceedings against the accused come to an end, though the outcome is not the same as an acquittal. Knowing the difference matters.
What a nolle prosequi actually does
When a nolle prosequi is entered, the charge is discontinued. The accused is released from the proceedings and is no longer required to answer the specific charge at that point in time. Courts treat the entry as a stay of those proceedings rather than a final finding of innocence.
This distinction is significant. An acquittal triggers the double jeopardy rule, meaning the prosecution cannot bring the same charge again. A nolle prosequi does not have the same effect in every jurisdiction. In New South Wales, the prosecution can, in principle, recommence proceedings on the same facts if the original bar on doing so has not been raised and accepted by a court. In practice, recommencement after a nolle prosequi is rare, but the legal exposure is real.
Who can enter a nolle prosequi
The power to enter a nolle prosequi sits with the prosecution. In NSW, this is the Office of the Director of Public Prosecutions (ODPP). The Director has a broad discretion to discontinue proceedings at any stage before verdict, and that discretion is exercised by reference to the Prosecution Guidelines. A private citizen cannot enter a nolle prosequi. Neither can a court order one on its own motion.
Ann Valos Criminal Law specialists regularly engage with the ODPP on behalf of clients precisely at these junctures, where a well-prepared submission about the state of the evidence can make discontinuation a realistic outcome.
Common reasons the ODPP enters a nolle prosequi
The ODPP does not discontinue proceedings lightly. The Prosecution Guidelines require prosecutors to assess two questions: whether the evidence is sufficient to support a conviction, and whether it is in the public interest to proceed. A nolle prosequi typically follows when one or both of those tests fail. The most common scenarios include:
- A key prosecution witness becomes unavailable, recants, or is found to lack credibility.
- New evidence emerges that undermines the Crown case or raises a viable defence.
- A co-accused who was to give evidence against the accused pleads not guilty or becomes unavailable.
- Forensic evidence is retested and the results no longer support the charge.
The prosecution can also take a nolle prosequi on a more serious charge while proceeding on a lesser included offence. This happens most often after a committal hearing strips out the strongest counts, or after a Newton hearing resolves the factual basis for a guilty plea on a different charge.
The difference between a nolle prosequi and a directed verdict
Both mechanisms end a criminal trial without a jury verdict, but they operate very differently. A directed verdict is granted by a judge, not the prosecution, and it has the same effect as an acquittal. The prosecution loses and double jeopardy applies. A nolle prosequi is a unilateral prosecution decision. No finding of guilt or innocence is recorded.
Where the prosecution realises mid-trial that its case has fallen apart, it may enter a nolle prosequi rather than risk having a directed verdict entered against it, because the latter forecloses any possibility of a future prosecution. Tactically, this makes a nolle prosequi a more conservative option for the Crown.
What it means for the accused
From the accused person's perspective, a nolle prosequi brings immediate relief. The charge is gone, bail conditions fall away, and no conviction is recorded. In most situations, that is where the matter ends.
The risk of recommencement is largely theoretical in NSW courts, and prosecutors face practical constraints: witnesses age, memories fade, and courts scrutinise any attempt to revive proceedings that were previously stayed. An experienced criminal lawyer can also make submissions to a court about the prejudice of recommencement if it is ever attempted.
The absence of a conviction means a nolle prosequi does not appear as a finding on a person's criminal record, though the fact of having been charged may appear in police records depending on disclosure context. Ann Valos Criminal Law Specialist advises clients on what records remain after proceedings are discontinued and what obligations, if any, exist to disclose a discontinued charge.
How to improve the prospect of a nolle prosequi
Defence lawyers can actively work toward a discontinuation by communicating with the ODPP before trial. A well-structured brief identifying weaknesses in the Crown case, supported by witness statements or expert evidence, gives the prosecutor a documented basis for applying the Prosecution Guidelines and entering a nolle prosequi.
This is distinct from a no-bill application, which is a formal request to the ODPP or Attorney-General to terminate proceedings before committal, though the strategic logic is similar: put the prosecutor in a position where the evidence threshold or public interest test cannot honestly be met.
Timing matters. Engaging a specialist criminal law firm early, before proceedings advance to trial, creates the widest window for this kind of intervention. Ann Valos Criminal Law Specialist has over 15 years of experience working with the ODPP in these circumstances, and the firm's accredited specialists draw on those working relationships to achieve outcomes well before a courtroom becomes necessary.