A reservation is not brought by a party. It is the trial Judge asking the Supreme Court to settle a point before the case can properly proceed.
Non-criminal jurisdiction
(1) A Judge or Judges of the National Court sitting in the exercise of any jurisdiction other than criminal jurisdiction —
(a) may reserve any case or any point in a case for the consideration of the Supreme Court; or
(b) may direct any case or point in a case to be argued before the Supreme Court,
and the Supreme Court may hear and determine any such case or point so reserved or directed to be argued.
(2) Except where the contrary intention expressly appears in a law, the power may be exercised in relation to any appeal or matter that comes before a Judge or the National Court under any law by which a Judge or that Court is designated to hear and determine the appeal or matter, notwithstanding that the determination of the Judge or of the Court is expressed to be final or without appeal.
A statute providing that a decision is final or without appeal does not prevent the Judge reserving a point of law for the Supreme Court. That is a route into the Supreme Court that no party could take by appeal.
Criminal trials
(1) When any person is indicted, the National Court shall, on the application of counsel for the accused person made before verdict, and may in its discretion, before or after verdict without such application, reserve any question of law that arises on the trial for the consideration of the Supreme Court.
(2) If the accused person is convicted and a question of law has been reserved before judgment, the National Court may (a) pronounce judgment on the conviction and respite execution of the judgment; or (b) postpone the judgment until the question has been considered and decided — and may (c) commit the person convicted to prison; or (d) admit him to bail on recognisance, with or without sureties, conditioned to appear at such time and place as the Court thinks proper.
On the application of counsel for the accused made before verdict, the National Court shall reserve the question. That is an entitlement, not a matter of discretion — provided the application is made before verdict.
After verdict, or without application, reservation is discretionary.
Order 8 Division 1
Where a Judge of the National Court reserves a case or any point in a case or any question of law for consideration of the court under s 15 or 21 of the Act, he or, in his absence, another Judge may give such directions as he considers proper for the drafting of the case stating the question reserved and for the preparation of documents for the use of the court.
Where a Judge proposes under s 21 to reserve a question of law, whether or not on the application of the accused, the Judge may give the same directions. — Supreme Court Rules 2012.
Order 8 Rule 3
(a) be entitled under the section of the Act by which it is made, the names of parties and the title of the proceedings from which the question arose;
(b) state the question;
(c) set forth such facts only as are relevant to raise the question of law reserved;
(d) if any question turns on the form of the pleadings, so much of the pleadings shall be set out as raises the question;
(e) state whether (i) a judgment on the conviction was pronounced or respited, or was postponed; and (ii) the convicted person was committed to prison or admitted to bail on recognizance;
(f) be in accordance with Form 12;
(g) be signed by the Judge.
Such facts only as are relevant to raise the question. A case stated is not a narrative of the trial; it is a statement of the minimum facts on which the point of law arises.
Rules 4 to 6
Rule 4 — the Reservation stating the question shall be transmitted by the Judge who signed it to the Registrar, who shall then compile an index to the Reservation book within 40 days of receipt.
Rule 5 — the Judge by whom the Reservation was stated may amend the statement of the case at any time before argument.
Rule 6 — upon receipt, the Registrar shall cause a copy of the Reservation book to be served (a) if under s 15, on the parties to the proceedings or on their lawyers; and (b) if under s 21, on the Public Prosecutor, the accused or his lawyer.
Order 11 Rule 23 allows the Court, where a case or question of law has been reserved under s 15 or 21 or referred under s 26, and whenever it appears necessary for the proper determination of the matter, to request the primary judge to furnish it with a report in writing. Rule 24 requires the Registrar to promptly furnish a copy of the report to each party.
Sources
- Supreme Court Act (Chapter 37) — ss 15, 21, 26
- Supreme Court Rules 2012 — O 8; O 11 rr 23, 24; O 13 r 7; Form 12
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.