The difference between legal and factual issues
A question of law is one which involves only a legal issue and not a factual issue. There is no dispute of fact. Such questions are usually legally complex and may involve technical legal interpretation.
Such an issue may sometimes arise in the middle of trial. Either the trial judge or any party to the proceedings which means both the Accused and the Prosecution may apply to have such a question referred to a higher court to have the issue heard and resolved.
Example: John is charged with theft after allegedly taking a watch from a shop.
Question of fact: Did John actually take the watch? This is determined by examining the evidence: CCTV footage, witness testimony, and so on. It is specific to John’s case and has no broader legal significance.
Question of law: Does picking up an item in a shop and placing it in your pocket, without yet leaving the store, constitute theft under the law? This is a legal question about how the law should be interpreted, and the answer would apply broadly to all cases, not just John’s.
Once resolved, the trial continues as normal. Applications must be made within 10 days of the relevant judgment, sentence, or order — though if the question concerns the Constitution, it may be raised at any stage of proceedings.
Which court will hear the issue and decide the question of law?
The court that hears the question of law depends on where the original trial was held.
If the trial took place in the State Courts, the application will typically be raised to the General Division of the High Court. However, in exceptional cases, the matter may be referred directly to the Court of Appeal if it gives permission to do so.
If the trial took place in the General Division of the High Court, the application will go up to the Court of Appeal.
What is a criminal reference?
Making an application to the Court of Appeal to have a question of law of public interest arising from those proceedings decided constitutes a criminal reference.
It is worth noting that criminal references are only available for questions arising from criminal appeals or revisions, not from trials heard by the General Division of the High Court. In the latter case, the proper application would be to refer a question of law.
There must be sufficient public interest in the question of law failing which the Court may not hear the matter. The Court reviews this requirement and makes a decision.
To proceed, you must first file a criminal motion seeking the Court of Appeal’s permission to refer the question. The deadline for an application to be made is one month from the decision of the General Division of the High Court.
This publication is not intended to be, nor should it be taken as, legal advice. It is not a substitute for specific legal advice for specific circumstances. You should not take, nor refrain from taking any action(s) based on this publication. We shall not be responsible for, nor do we accept any responsibility for, any loss or damage that may arise from any reliance on this publication.