Director of Public Prosecutions (SA) v B

The Director of Public Prosecutions (DPP) appealed to the High Court of Australia against an order of the Full Court of the Supreme Court of South Australia. The dispute concerned the power of a trial judge to refuse to accept a nolle prosequi entered by the DPP. The Full Court had answered two questions reserved by the trial judge, Mohr J, in favour of the respondent, B.

The legal issues before the High Court were whether the trial judge had the jurisdiction to reserve the questions of law for the Full Court, and if so, whether a court has the power to refuse to accept a nolle prosequi entered by the DPP, and if such a power exists, what limitations apply to its exercise. The central question was whether the questions reserved by Mohr J arose "at the trial" as required by the relevant legislation.

The High Court determined that the trial judge did not have the jurisdiction to reserve the questions of law for the Full Court because no trial had commenced at the time the nolle prosequi was rejected. In South Australia, a criminal trial begins upon arraignment of the accused. The DPP conceded that the respondent had not been arraigned when Mohr J purported to reject the nolle prosequi. Therefore, the questions reserved did not arise "at the trial".

The High Court allowed the appeal, setting aside the order of the Full Court of the Supreme Court of South Australia. In lieu of the Full Court's answers, the High Court ordered that it was inappropriate to answer either of the questions reserved.