APPLICATION FOR RESERVATION OF QUESTIONS OF LAW (NO 1 OF 2017)

This matter came before Nicholson, Parker and Lovell JJ of the Full Court of the Supreme Court of South Australia concerning an application to reserve questions of law arising from a criminal trial. The application sought to have the trial judge reserve several questions of law for the determination of the Full Court, as permitted by section 350 of the *Criminal Law Consolidation Act 1935* (SA). The dispute centred on the admissibility of evidence obtained from tracking devices attached to motor vehicles, which the trial judge had excluded.

The primary legal issues before the Full Court were whether it was appropriate to exercise the power to reserve questions of law, whether the questions posed were of sufficient general importance to warrant such a reservation, and whether the case stated procedure was suitable in the circumstances that gave rise to the questions. The prosecution sought to reserve questions concerning the admissibility of the tracking device data, particularly in light of the trial judge's ruling that the evidence adduced was insufficient to establish its reliability and admissibility, especially concerning aspects of the device's operation, installation, and the software used to extract the data.

The Full Court considered the principles governing the reservation of questions of law, emphasising the need for questions to be of general importance and for a sufficient factual basis to exist for their determination. The Court noted that the evidence before the trial judge was incomplete in several material respects, which would prevent any answers given by the Full Court from having general application, rendering them specific only to the facts of this particular case. The Court concluded that the proposed questions, particularly questions 2 to 5, could only have a more general application if a preliminary question (question 1) regarding public interest immunity was first referred and answered. However, the Court found that even then, a suitable factual basis for answering the subsequent questions would require further processes before the trial judge, including potentially re-opening the voir dire and adducing further evidence.

The Court determined that pursuing the reservation of questions in the manner proposed would lead to significant fragmentation of the trial process and unacceptable delay. Consequently, the Court was not persuaded that a suitable factual basis existed for each question to be identified and answered with general application. The Court therefore declined to require the reservation of the questions of law.