QUESTION OF LAW RESERVED BY TRIAL JUDGE (NO 3 OF 2010)

[2010] SASCFC 77

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Case Stated)

QUESTION OF LAW RESERVED BY TRIAL JUDGE (NO 3 OF 2010)

[2010] SASCFC 77

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice David and The Honourable Justice Peek)

21 December 2010

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND RESERVATION OF QUESTION OF LAW

Reservation of a question of law on an "issue antecedent to trial" - no application for stay of proceedings - no motion to quash information - no trial in progress or scheduled - accused not yet arraigned - no findings of fact or decision by District Court judge.

Held:  Court declines to answer question.

Criminal Law Consolidation Act 1935 s 350(2), referred to.

QUESTION OF LAW RESERVED BY TRIAL JUDGE (NO 3 OF 2010)
[2010] SASCFC 77

Court of Criminal Appeal:  Vanstone, David and Peek JJ

1. THE COURT: Acting pursuant to s 350(2) of the Criminal Law Consolidation Act 1935 (“the Act”) a judge of the District Court reserved a question for determination by the Full Court. It was said to be a relevant question on an issue antecedent to trial. The question concerns the interpretation of a relatively recent sub-section of the Act proscribing procuring or making communications for the purpose of procuring a child for sexual purposes. The defendant is charged under both sub-paragraphs of the sub-section. Therefore the question requires two answers. The question was in these terms:

   Whether an offence pursuant to section 63B(3)(a) and (b) of the Criminal Law Consolidation Act 1935 (SA) can be committed in circumstances where the alleged communication by an accused person is made via the internet to an adult serving undercover South Australian Police officer with an assumed and fictitious identity of a child;

2. The Court perceived certain difficulties in the way in which the question arose and was formulated.  Those difficulties bore on the matter of jurisdiction and on the propriety of answering the question.  We declined to determine the question and said we would give brief reasons for that decision.  These reasons are as follows.

3. It appears from the papers that although an application to stay the information and a motion to quash the information were foreshadowed, neither such application was made. Having regard to the definition of “issue antecedent to trial” in s 348 of the Act, s 350(2)(a) does not appear to ground this reference. It could be said that the question is “relevant to the trial … of the defendant” in terms of s 350(2)(b), but it is accepted on both sides that no trial is in progress, or set down, and, indeed, the defendant has not yet been arraigned.

4. The factual background recited in the document reserving the question amounts to a summary of the prosecution case, as opposed to findings made by the judge.  In certain instances this Court is asked to make assumptions about the facts.  Those assumptions concern the state of mind of the defendant at times relevant to the alleged offences.  It is specifically stated that the defendant makes no admission as to his state of mind.  In considering the question it may well be necessary to discuss the factual circumstances of the charges.

5. Were there to be a trial on the charges, the evidence might depart from that foreshadowed in the depositions, or from the assumptions appearing in the recital.  And, during the trial, the information might be amended.  To that extent the reserved question appears to be hypothetical.  There is a risk that, were the question addressed, the answer might amount to an advisory opinion.

6. Finally, because of the early stage at which the question has been reserved, the Court not only lacks a firm factual context for the question, but is also denied the advantage of a decision and considered reasons from the court below.

7. In all the circumstances we declined to consider and determine the question.  In our view, it is preferable for the matter to proceed in the usual way.