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

This matter came before the Full Court of the Supreme Court of South Australia by way of a question of law reserved by a Trial Judge. The reservation arose in circumstances where the accused had not yet been arraigned, no trial was in progress or scheduled, and no findings of fact or decision had been made by the District Court judge. Crucially, there had been no application for a stay of proceedings or a motion to quash the information.

The central legal issue before the Full Court was whether the Trial Judge had the power to reserve a question of law under the relevant provisions of the *District Court Act 1991* (SA) in the specific procedural posture presented. This involved determining whether the reservation constituted an "issue antecedent to trial" within the contemplation of the legislation, and whether the absence of a formal trial or specific procedural applications precluded such a reservation.

The Court reasoned that the power to reserve a question of law under section 270 of the *Criminal Law Consolidation Act 1935* (SA), as applied to the District Court, was intended to apply to questions arising during or after a trial, or in circumstances where a trial was imminent and a determination of a preliminary legal issue was necessary to avoid an abortive trial. The Court found that the present situation, lacking any substantive proceedings or a clear indication of an impending trial, did not meet the threshold for a valid reservation of a question of law. The reservation was therefore considered premature and improperly made.

The Full Court ordered that the question of law reserved be discharged.