A section 26 reference is not an appeal against an acquittal. It is a mechanism for settling the law where an acquittal has turned on a legal ruling the prosecution says was wrong.
Section 26
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 — the Adviser may, within 40 days after the acquittal, refer the point to the Supreme Court, and the Court shall consider the point and give its opinion on it.
(5) A reference under this section does not affect the trial in relation to which the reference is made or any acquittal in that trial.
Order 1 Rule 7 of the Supreme Court Rules 2012: “the principal legal adviser” means the Principal Legal Adviser within the meaning of the Attorney-General Act 1989 — the Attorney-General.
Order 9 Rule 1
A reference under section 26 shall —
(a) be entitled under the section of the Act by which it is made and the title as set out in the indictment;
(b) make no reference to the identity of the acquitted person;
(c) specify the point of law referred;
(d) where appropriate, such facts of the case as are necessary for the proper consideration of the point of law;
(e) state to the acquitted person (i) that the reference will not affect the trial and acquittal; and (ii) that he should inform the Registrar, within a specified time not less than 28 days after the date of service, if it is intended to present argument to the court either in person or by a lawyer;
(f) be in accordance with Form 13;
(g) be filed in the Registry.
Upon filing the reference, the Principal Legal Adviser, for the purposes of s 26 of the Act, shall be deemed to have reserved the matter.
Filing is the operative act, as it is for a notice of appeal under Order 7 Rule 11. That is what must happen within the 40 days after the acquittal.
Paragraph (b) and section 26(3)
Order 9 Rule 1(b) requires the reference itself to make no reference to the identity of the acquitted person.
Section 26(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. Section 26(4): any publication in contravention of Subsection (3) is punishable as contempt of the Supreme Court.
The rule constrains the document; the section constrains reporting. Note that the statutory protection extends to any person charged at the trial or affected by the decision, not only to the acquitted person.
Order 9 Division 2
Upon the filing of the reference, the Registrar shall cause to be served with a copy of the reference (a) the person acquitted; (b) the Public Prosecutor; and (c) the Public Solicitor.
Service is effected by the Registrar, not by the referring party.
(a) by sending it by post, addressed to the lawyer who acted for the person acquitted at trial; or
(b) in the case of a body corporate, by leaving it at or sending it by post to the registered office; and
(c) in the case of any other person, by post as provided by law, by delivery to the person, or by leaving it with some person apparently over the age of 16 years at the last known or usual place of residence.
Who is heard, and directions
The Court shall hear argument by or on behalf of the Principal Legal Adviser; if the acquitted person desires to present any argument, by counsel on his behalf or, with the leave of the Court, by the acquitted person himself; and by or on behalf of the Public Prosecutor and the State Solicitor, or either of them, if they wish.
Order 9 Rule 5: where a reference has been filed, the court may give such directions as may be required concerning the terms of the reference, the matters to be included in it and provision of lawyers for the argument of it.
That last power matters. The acquitted person has no stake in the outcome and may not participate, so the Court can arrange for the contrary argument to be put.
Order 9 Division 4
The Principal Legal Adviser may withdraw or amend the reference by notice — (a) before hearing without leave; or (b) after commencement of hearing but before the court delivers its opinion, with leave.
The notice shall be in accordance with Form 14, be filed in the registry, and be served where applicable in accordance with Division 2.
A reference is brought to settle a point for the future, not to resolve a dispute between parties. Where the point turns out to be unsuitable — the facts do not raise it cleanly, or it has been decided elsewhere in the meantime — there is no reason to press on.
Rule 6(a) allows withdrawal before hearing without leave. After the hearing has begun, leave is needed, and only before the court delivers its opinion.
Sources
- Supreme Court Rules 2012 — O 1 r 7; O 7 r 11; O 9; O 11 rr 23, 24; O 13 r 7; Forms 13, 14
- Supreme Court Act (Chapter 37) — s 26
- 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.