The Act distinguishes carefully between an acquittal at trial and a judgment quashing a conviction. The first cannot be appealed; the second can.
Section 25
Where the National Court has given a judgment quashing a conviction, or any count or part of a charge, the Public Prosecutor may appeal to the Supreme Court against the judgment, and the Supreme Court may —
(a) determine the appeal; and
(b) if the appeal is sustained, make such order for the prosecution of the trial as it thinks necessary or desirable.
Section 25 applies where a conviction has been quashed — most obviously where the National Court, sitting on appeal from a lower court, has set aside a conviction.
Paragraph (b) is the practically important part: on a successful appeal the Supreme Court may make such order for the prosecution of the trial as it thinks necessary or desirable, which allows the proceeding to be revived rather than merely restoring the conviction.
Section 26
(1) Where a person tried on indictment has been acquitted, whether in respect of the whole or part of the indictment, and the Principal Legal Adviser desires the opinion of the Supreme Court on a point of law that has arisen in the case —
(a) the Principal Legal Adviser may, within 40 days after the acquittal, refer the point to the Supreme Court; and
(b) the Court shall, in accordance with this section, consider the point and give its opinion on it.
A reference under this section does not affect the trial in relation to which the reference is made or any acquittal in that trial.
The acquitted person stays acquitted. The reference settles the law for the future; it does not reopen the case. That is what distinguishes a section 26 reference from an appeal.
The Principal Legal Adviser
“The principal legal adviser” means the Principal Legal Adviser within the meaning of the Attorney-General Act 1989 — that is, the Attorney-General. — Supreme Court Rules 2012.
So a section 26 reference is made by the Attorney-General, not by the Public Prosecutor — though under subsection (2)(c) the Public Prosecutor and the State Solicitor may each present argument.
Subsection (2)
For the purpose of its consideration of a point referred to it, the Supreme Court shall hear argument —
(a) by, or by counsel on behalf of, the Principal Legal Adviser;
(b) if the acquitted person desires to present any argument to the Court, by counsel on his behalf or, with the leave of the Court, by the acquitted person himself;
(c) by, or by counsel on behalf of, the Public Prosecutor and the State Solicitor, or either of them, if they desire to present any argument.
The acquitted person is entitled to be heard but is not required to participate. Nothing turns for them on the outcome, since subsection (5) preserves the acquittal.
Subsections (3) and (4)
(3) No report of proceedings under this section shall be published that discloses the name or identity of any person charged at the trial or affected by the decision given at the trial.
(4) Any publication in contravention of Subsection (3) is punishable as contempt of the Supreme Court.
The protection is for anyone charged at the trial or affected by the decision — not only the acquitted person. And the sanction is contempt of the Supreme Court, not merely a regulatory penalty.
This is why reported section 26 references appear under anonymised titles.
Acquittal and quashing are not the same
An acquittal at trial is a determination that the charge is not made out. Section 26 allows the law to be clarified for the future but leaves the verdict untouched: a reference under this section does not affect the trial in relation to which the reference is made or any acquittal in that trial.
A judgment quashing a conviction is a decision setting aside a finding of guilt already made — typically by the National Court sitting on appeal. Section 25 allows that judgment to be appealed, and permits the Court, if the appeal is sustained, to make such order for the prosecution of the trial as it thinks necessary or desirable.
So the question in any given case is what the National Court actually did. A judgment allowing an appeal and quashing a conviction falls within section 25; a verdict of not guilty at trial does not.
How a reference is made
Where a case or question of law has been reserved under s 15 or 21 or referred under s 26 of the Act, the Court may, whenever it appears necessary for the proper determination of the matter, request the primary judge to furnish it with a report in writing and direct the Registrar to furnish the judge with any document or information which it considers material. The Registrar must then promptly furnish a copy of the report to each party.
Order 13 Rule 7(3) requires a reference book prepared as closely as possible to Order 7 Divisions 14 and 15, and Rule 7(2) provides that no substantive matter shall be added to the Callover List unless a book is filed.
Sources
- Supreme Court Act (Chapter 37) — ss 15, 21, 24, 25, 26
- Supreme Court Rules 2012 — O 1 r 7; O 11 rr 23, 24; O 13 r 7
- Attorney-General Act 1989
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.