Question of Law Reserved (No 1 of 2018) [No 2]

This matter concerned a question of law reserved by a judge of the District Court of South Australia. The question arose in the context of criminal proceedings against a defendant, who had pleaded guilty to a charge of aggravated assault. The reserved question concerned the proper interpretation of section 139(1) of the *Criminal Law Consolidation Act 1935* (SA), specifically in relation to the circumstances under which a court may order a defendant to pay the costs of the prosecution.

The central legal issue before the Full Court of the Supreme Court of South Australia was whether, following a guilty plea, the court retained the discretion to order the defendant to pay the prosecution's costs under section 139(1) of the *Criminal Law Consolidation Act 1935* (SA), even if the court was not proceeding to conviction or sentencing. The question specifically asked whether the phrase "if the court proceeds to conviction or sentence" in section 139(1) imposed a condition precedent to the exercise of the discretion to order costs.

The Full Court held that the phrase "if the court proceeds to conviction or sentence" in section 139(1) of the *Criminal Law Consolidation Act 1935* (SA) operates as a condition precedent to the court's power to order the defendant to pay the costs of the prosecution. Therefore, where a court does not proceed to conviction or sentence, it has no power to make such an order. The court reasoned that the plain language of the section indicated that the discretion to order costs was contingent upon the court taking one of those two steps.

The Full Court answered the question of law reserved in the affirmative, concluding that the District Court judge did not have the power to order the defendant to pay the prosecution's costs in the circumstances presented.