Reservation of Points of Law/Criminal References

(a) Questions of Law

Questions of law may be reserved by the trial court (which could be either the High Court or the State Courts) for the consideration of the relevant court under section 395 of the Criminal Procedure Code. An application to state a case setting out the question of law may be made either by the trial judge himself, or upon the application of any party to the proceedings in the State Courts. Such an application must be made within 10 days from the time of the judgment, sentence or order in question (section 395(2)(b) of the Criminal Procedure Code). If, however, the question to be referred concerns the Constitution, the application may be made at any stage of the proceedings (section 395(2)(a) of the Criminal Procedure Code).

Where a case setting out the question of law is stated by the High Court, the relevant court hearing the stated case will be the Court of Appeal; where a case is stated by the State Courts, the relevant court hearing the stated case will be the High Court (section 395(15) of the Criminal Procedure Code).  However, a party before the State Courts may, with the leave of the Court of Appeal state its case directly to the Court of Appeal (section 396 of the Criminal Procedure Code)

 

(b) Criminal Reference

Where a criminal matter has been determined by the High Court in the exercise of its appellate or revisionary powers, a party to the proceedings who wishes to refer any question of law of public interest may apply to the Court of Appeal for leave to do so (section 397(1) of the Criminal Procedure Code). An application for leave to refer is by way of a criminal motion must be made within one month of the decision of the High Court, or within such time as may be permitted by the Court of Appeal (section 397(3) of the Criminal Procedure Code).   The Public Prosecutor may refer any question of law of public interest to the Court of Appeal, without the leave of the Court of Appeal (section 397(2) of the Criminal Procedure Code).

A Criminal Reference is commenced by way of a Criminal Motion to the Court of Appeal. The documents to be filed by the applicant are:

  • a Notice of Motion;
  • a supporting Affidavit; and
  • an Order of the High Court in its original decision.

The public may attend Criminal References as they are held in open court.  As in the case of Criminal Appeals, the decision of the Court of Appeal in a Criminal Reference is final. 

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