A prosecution that deliberately closes its case without calling evidence after an adverse evidentiary ruling cannot appeal the resulting dismissal under s 42 of the Magistrates Court Act 1991 (SA), even if the evidentiary ruling was wrong. The appeal provisions cannot be used to effectively challenge interlocutory evidentiary rulings by framing the appeal as one against the final order of dismissal. Any miscarriage of justice arising from an evidentiary ruling must be apparent from the material before the court; the appeal court cannot speculate on evidence the prosecution chose not to call. Debelle J identified a legislative gap and suggested amending s 43 to permit appeals on pre-trial rulings adverse to the prosecution, similar to s 352(b) of the Criminal Law Consolidation Act 1935.
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