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What is a question of law

A question of law is one that relates only to legal issues and not factual ones. These questions are usually highly technical and require legal training to resolve. To qualify as a question of law, there must be sufficient generality embedded within a proposition posed by a question and the question must contain normative force for it to qualify as a question of law.

Stating a question of law to the Supreme Court means applying to the Supreme Court to resolve a legal issue that has come up during trial. Once the legal issue has been resolved, the trial can continue.

An application to state a question of law may be made either by the trial judge or upon the application by any party to the proceedings. 

The application must be made within 10 days of the judgment, sentence or order in question. If the question concerns the Constitution, the application can be made at any stage of the proceedings.

Note
Applications to refer questions of law can be very technical. You may wish to seek legal advice for such applications.

Where a question of law is heard

Where the question of law is heard depends on where the original trial was held:

For State Courts trials

If your original trial was in the State Courts, the General Division of the High Court will hear the application.

Exception: In special cases, a party before the State Courts may, with the leave (permission) of the Court of Appeal, state its case directly to the Court of Appeal. 

For General Division of the High Court trials

If your original trial was in General Division of the High Court, the Court of Appeal will hear your stated case.

Resources

Legislation associated with this topic includes Sections 395 to 396 of the Criminal Procedure Code.

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What is a criminal reference

A criminal reference is an application to the Court of Appeal to answer a question of law of public interest arising from a criminal appeal or criminal revision heard by the General Division of the High Court. A question of law of public interest is a phrase with a specific meaning in law. The court will determine whether the question reserved is one of sufficient public interest to be worth answering.

You will first need to file a criminal motion to the Court of Appeal for leave (permission) to refer the question of law of public interest. This should be done within 1 month of the decision of the General Division of the High Court.

Note: A criminal reference may only be made in respect of questions of law of public interest that arise from criminal ppeals or criminal revisions heard by the General Division of the High Court. It is not applicable to issues arising from trials heard by the General Division of the High Court. The proper procedure in such cases is to state a question of law instead. 

Resources

Legislation associated with this topic includes Section 397 of the Criminal Procedure Code.

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