Mastering Procedural Tools In Criminal Proceedings

Jul 27, 2023

Points Reserved & Criminal Reference, Criminal Revisions, and Criminal Motions

The following procedures are distinct from Criminal Appeals (see Criminal Appeals), and involve applications to the Supreme Court (see The Courts) for various purposes.

Points Reserved & Criminal References

Points Reserved

Points Reserved is a procedure for an Appellate Court to answer any question of law that may arise at trial. The Trial Court or any party to the proceedings may avail itself of this procedure. Importantly, the application cannot be frivolous or without any merit.

Where the Trial Court is the State Court, a case on any question of law may be stated to the High Court. However, where permission of the Court of Appeal is obtained, any party to the proceedings before the State Courts may state a case directly to the Court of Appeal.

Where the Trial Court is the High Court, a case on any question of law may be stated to the Court of Appeal.

Where the question of law relates to the interpretation of the Constitution, an application to the relevant Appellate Court may be made at any stage of the proceedings.

An application relating to any other questions of law may only be made in writing within 10 days from the time of the making or passing of the judgement, sentence, or order by the Trial Court.

Criminal Reference

A Criminal Reference is an application to the Court of Appeal to determine any question of law of public interest which has arisen in the course of a Criminal Appeal (see Criminal Appeals) or Criminal Revision (see Criminal Revision). A “question of law of public interest” means a question of law, the determination of which would have a general application to all future cases in which the same point might arise.

It is important to note that a Criminal Reference is not applicable to issues arising from trials heard by the General Division of the High Court. In such a case, the proper procedure is Points Reserved (see Points Reserved).

An application for a Criminal Reference must be permitted by the Court of Appeal, and must be made within 1 month of the determination of the matter to which it relates (or such longer time as the Court of Appeal may permit). If the Public Prosecutor makes the application, no permission from the Court of Appeal is required; however, such an  application must be made with the Public Prosecutor’s written consent.

Summary of Points Reserved and Criminal Reference

Referring Court	Question of law to be Referred	Time to Refer	Whether permission required
State Court	Constitutional question of law	At any time during the proceedings	Trial court needs to be satisfied that the application is not frivolous.
State Court	Any other question of law	Within 10 days from the time of judgement, sentence or order	Trial court needs to be satisfied that the application is not frivolous.
High Court (trial court)	Constitutional question of law	At any time during the proceedings	Trial court needs to be satisfied that the application is not frivolous.
High Court (trial court)	Any other question of law	Within 10 days from the time of judgement, sentence or order	Trial court needs to be satisfied that the application is not frivolous.
High Court (appellate jurisdiction)	Any question of law of public interest	1 month of the determination of the matter to which it relates	Permission of Court of Appeal required; such permission is not required if application made by the Public Prosecutor

Criminal Revision

The General Division of the High Court has revisionary jurisdiction in respect of criminal proceedings and matters dealt with by the State Courts. A Criminal Revision empowers the High Court to examine the record of any criminal proceedings before the State Courts, and, if there are any irregularities, to correct them.

The revisionary jurisdiction of the High Court may be invoked at any time. Practically speaking however, parties would normally apply for the jurisdiction to be exercised on the conclusion of proceedings.

The revisionary powers granted to the High Court are extensive, and include, amongst other things:

• Granting a stay of execution on any judgement, sentence or order pending appeal;
• Order the remand of an Accused person pending appeal;
• Set aside a conviction and order a retrial;
• Set aside an acquittal and order a retrial;
• Affirm, vary or set aside any CCDC orders and/or Disposal orders.

However, the High Court, in the exercise of its revisionary powers, cannot convert an acquittal into a conviction.

Because the Courts are anxious to prevent the abuse of process by parties, revisionary powers are exercised sparingly and only in exceptional circumstances where serious injustice would be caused. An Accused person who is merely unsatisfied with his/her sentence should not plead for the invocation of the High Court’s revisionary powers. In such a case, more often than not, the proper procedure would be for the Accused to appeal against his sentence (see Criminal Appeals).

The following are some examples where the Courts have exercised their revisionary powers:

• where the accused had pleaded guilty to a wrong charge and was erroneously convicted of a charge which attracted a heavier punishment;
• where the accused pleaded guilty on the basis of a SOF which did not disclose all necessary elements of the offence; and
• where a judge exceeded his sentencing powers.
  
  

Criminal Motion

A Criminal Motion is an application that is filed during criminal proceedings by the Accused or the Public Prosecutor. A notice of motion must be served by the applicant on parties to the proceedings, and a criminal motion must not be held earlier than 7 days from the date on which such a notice is served.

A Criminal Motion is not a proceeding in and of itself. It is often used for some purpose that is ancillary to a pre-existing criminal matter.

It ought to be noted that a criminal motion cannot be utilised to circumvent the general rule forbidding appeals against interlocutory rulings.  A criminal motion should only be used in appropriate circumstances, and should not be filed frivolously in an attempt to interrupt a trial.

An application for a Criminal Motion can be filed to apply for, amongst other things, any of the following:

• Bail/Variation of the amount of bail (see Bail)
• Extension of time to file a Notice of Appeal or Petition of Appeal (see Criminal Appeals)
• Adducing further evidence on Appeal (see Criminal Appeals)
  
  

The Value of the Defence Counsel

The various criminal applications are utilised for different purposes. A capable Defence Counsel would be best placed to render advice on the appropriate criminal applications at each stage of the proceedings. The care of capable criminal lawyers will ultimately facilitate and ensure a just and expeditious conclusion of a criminal matter.