302. Reservation of question of law

302. Reservation of question of law

(1) This section applies to a proceeding in the County Court or the Trial Division of the Supreme Court for the prosecution of an indictable offence.

(2) In a proceeding referred to in subsection (1), if a question of law arises before or during the trial, the court may reserve the question for determination by the Court of Appeal if the court is satisfied that it is in the interests of justice to do so, having regard to—

(a) the extent of any disruption or delay to the trial process that may arise if the question of law is reserved; and

(b) whether the determination of the question of law may—

(i) render the trial unnecessary; or

(ii) substantially reduce the time required for the trial; or

(iii) resolve a novel question of law that is necessary for the proper conduct of the trial; or

(iv) reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial.

(3) The court must not reserve a question of law after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.

Note

Section 33 of the Charter of Human Rights and Responsibilities Act 2006 also provides for the referral to the Supreme Court of questions of law that relate to the application of the Charter or the interpretation of a statutory provision in accordance with the Charter.

See also the commentary at s 295 regarding the right to interlocutory appeals to the Court of Appeal from the County Court and Supreme Court Trial Division.

It is not always easy to determine whether a question is evidentiary, legal or otherwise: see PNJ v DPP [2010] VSCA 88.

Prior to the enactment of the Criminal Procedure Act 2009, Maxwell P said in an address to the Bar called A New Approach to Criminal Appeals:

As flagged in that passage, the case stated provisions have also been much enlarged, to facilitate – and encourage – trial judges, and trial parties,to consider stating a case for the Court of Appeal when a fundamental issue is identified. The importance of early identification of issues is self-evident. As with interlocutory appeals, a case may be stated before – or, in exceptional cases, after – the trial has commenced.

Inevitably, these new procedures will - in the short term at least - impose an additional workload on the Court of Appeal. We are already overburdened by our conventional appeal work, both civil and criminal. But the clear view of the Court - which the Government has endorsed by enacting this legislation - was that to deal with ‘knock-out’ points at the start rather than at the end of a trial is likely, in due course, to pay a handsome dividend, by reducing the number of conviction appeals which have to be heard.