This is an unusual provision and a rarely used one. It allows the Court to go back to the Judge below and ask a question about what happened at the trial.
Order 11 Rule 23
Where —
(a) notice of appeal or application for leave to appeal has been filed; or
(b) 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 any application or appeal —
(i) request the primary judge to furnish it with a report in writing in the terms of the request; and
(ii) direct the Registrar to furnish the judge with any document or information which it considers material.
Paragraph (b) explained
Section 15 — a Judge or Judges of the National Court sitting in any jurisdiction other than criminal jurisdiction may reserve any case or any point in a case for the consideration of the Supreme Court, or direct any case or point to be argued before it. The power may be exercised notwithstanding that the determination of the Judge or of the Court is expressed to be final or without appeal.
Section 21 — where a person is indicted, the National Court shall, on the application of counsel for the accused made before verdict, and may in its discretion, before or after verdict, reserve any question of law that arises on the trial for the consideration of the Supreme Court.
Section 26 — where a person tried on indictment has been acquitted and the Principal Legal Adviser desires the Court’s opinion on a point of law arising in the case, the Adviser may, within 40 days after the acquittal, refer the point to the Supreme Court.
See cases stated and references after acquittal.
“Necessary for the proper determination”
The appeal proceeds on the appeal book, and section 6 of the Supreme Court Act makes an appeal a rehearing on the evidence given in the National Court. Ordinarily the reasons, the transcript and the exhibits are enough.
A report is for the case where they are not — where the ground of appeal concerns something that happened at the trial and is not recorded. What was said in an exchange not transcribed; how an application was dealt with; what material the Judge in fact had; the basis of a ruling given without reasons.
Rule 23 says the Court may. There is no application in the Rules for a party to compel a report.
A party who thinks one is needed should say so — at a Directions Hearing under Order 13 Rule 8, or in the written submissions — identifying precisely what question the record does not answer. That is far more likely to succeed than a general assertion that the reasons are inadequate.
Order 11 Rule 24
The Registrar shall, after delivery of the primary judge’s report to the members of the court, promptly furnish a copy of the report to each party to the appeal or application.
A report obtained from the Judge whose decision is under attack, and seen only by the bench, would be material adverse to a party which that party never had the chance to answer.
Rule 24 prevents that. The report is furnished to each party, and promptly, so that it can be addressed in argument. The obligation is on the Registrar and is not conditional on request.
The same logic runs through Rule 23(ii), which allows the Court to direct the Registrar to furnish the judge with any document or information which it considers material — the flow of material is managed through the Registrar, on the record, not privately.
If a report arrives
Read it against the record. Where the report and the transcript differ, that is itself a matter to raise. Order 7 Rule 39 provides the mechanism for disagreements about the accuracy of the transcript, referring the question to the Registrar or primary Judge.
Consider whether it answers the ground. A report explaining that a matter was in fact considered may dispose of a ground; one confirming that it was not may establish it.
Ask for the chance to address it. Where the report arrives after submissions have been filed under Order 11 Rule 13, ask for leave to file a short supplementary submission dealing with it. Order 13 Rule 8 allows the Duty Judge to give directions on the manner of presentation of arguments, and Order 7 Rule 47 allows orders for the expediting of the appeal.
Not fresh evidence
A report under Rule 23 explains the proceeding below. It is not a route for putting new material before the Court.
Additional evidence is governed by Order 7 Division 20: the application is made at the hearing of the appeal, by notice stating the nature of the evidence sought to be called and supported by an affidavit stating the grounds. See new evidence on appeal.
Sources
- Supreme Court Rules 2012 — O 7 rr 39, 47, 52–59; O 11 rr 13, 23, 24; O 13 r 8
- Supreme Court Act (Chapter 37) — ss 6, 15, 21, 26
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.