23 Section 5(1) now makes it clear that a directions hearing under that section is a hearing which antedates the trial. That is emphasized by s.5(6). But even if it was open to conclude that a case can now be stated under s.446(2) when a matter is at the Part 3 directions stage,[12] it is at least clear that s.5(2) requires that the accused person plead to each count on the presentment at the beginning of the first directions hearing. So far as we can see, even if the series of mentions between 1 December 2005 and 7 April 2006 could be characterised as directions hearings under Part 3, there was no compliance with s.5(2). True it is that Mr Garlick had been arraigned at his aborted trial. But that was now consigned to history; and, in any event, it would not seem to fit the specific requirements of s.5(2).
24 We go to the form of the case stated. The proper content of a case stated has been described, and insisted upon, on many occasions. Relevant principles, including the seminal statement of Dixon C.J., McTiernan, Webb, Kitto and Taylor J.J. in R v Rigby,[13] were reiterated by this Court in Furze v Nixon.[14]
25 As we have earlier recognised, the form that the document took was no doubt explained by the commonsense desire of the learned judge, and the parties, to have this Court canvass as many questions as was possible with respect to the operation of s.72A of the Act. But praiseworthy as that objective may be accounted, it led to the formulation of a case stated which failed to comply with the requirements of such a procedure.
26 First, it did not state ultimate facts; and it is the ultimate facts which are the bedrock of a case stated.
27 Second, it set out, in part, the evidence given at the trial which had miscarried. This was objectionable for two reasons. Evidence should not normally be included in a case stated; and we can see no reason why this matter should have been an exception to that principle. Moreover, the evidence given in the aborted trial might or might not have been replicated when the matter came on for re-trial.
28 Third, the case recited matters remote from identification of a relevant question of law. Thus, for example, it recited the circumstances in which the trial had miscarried, and it annexed a paper prepared by a County Court researcher at the request of the learned judge.
29 Fourth, the case set out substantial argumentative passages in which the learned judge, no doubt for the assistance of this Court, sought to illuminate a variety of factual matters which might be of importance in particular cases in determining charges laid against persons under s.72A of the Act.
30 Fifth, a case stated is not to be used to facilitate the offering of general advisory opinions on hypothetical facts.[15] But the questions of law, so described, which were reserved for the determination of this Court, raised for its consideration a series of generic questions concerning s.72A. They were not tied to the ultimate facts of the instant case. We should add that it might have been very difficult to isolate the necessary ultimate facts at the stage which the proceeding had reached when the case was stated.