R v CHRYSSOMALLOS

The appeal concerned a respondent charged with several offences under the Criminal Law Consolidation Act 1935 (SA), including maintaining an unlawful sexual relationship with a child, aggravated inciting or procuring a child to commit an indecent act, and unlawful sexual intercourse with a person under 14. The dispute arose during the trial when the judge indicated he would not leave count 2 to the jury, deeming the alleged indecent act not to have been committed by the child. Subsequently, the prosecutor informed the court that the Director intended to enter a nolle prosequi in relation to counts 3 and 4. The Court of Criminal Appeal of South Australia was required to determine the legal effect of the prosecutor's actions and the judge's subsequent directions.

The central legal issue was whether the trial judge retained the power to direct acquittals on counts 2, 3, and 4 after the prosecutor had indicated the Director's intention not to proceed with those counts by entering a nolle prosequi. The court had to consider the validity and effect of a nolle prosequi entered during a trial, particularly in light of the judge's earlier intention to direct an acquittal on count 2 and the prosecutor's subsequent communication regarding counts 2, 3, and 4.

The Court applied the principles established in *Beckett v New South Wales* and *Question of Law Reserved on Acquittal (No 3 of 1995)*, which confirm that a nolle prosequi can be entered at any time after indictment and before verdict. The Court found that the prosecutor's clear communication of the Director's intention not to proceed with counts 2, 3, and 4, made in the presence of the jury, constituted a valid entry of a nolle prosequi. This action brought the proceedings on those counts to a halt without a determination of guilt. Consequently, the trial judge had no power to direct the jury to return verdicts of acquittal on counts 2, 3, and 4, nor did the jury have the power to do so. The prior exchanges between the judge and prosecutor were deemed immaterial to the legal effect of the nolle prosequi.

The Court granted permission to appeal, upheld the appeal, and quashed the verdicts of acquittal entered on counts 2, 3, and 4.