§ 395 — Power of court to state case

395.—(1) A trial court hearing any criminal case, may on the application of any party to the proceedings or on its own motion, state a case to the relevant court on any question of law.(2) Any application or motion made —(a)

on a question of law which arises as to the interpretation or effect of any provision of the Constitution may be made at any stage of the proceedings after the question arises and must set out the question to be referred to the relevant court; and

(b)

on any other question of law must be made in writing within 10 days from the time of the making or passing of the judgment, sentence or order by the trial court and set out briefly the facts under deliberation and the question of law to be decided on them.

(3) The trial court must —(a)

upon an application or motion made on a question of law which arises as to the interpretation or effect of any provision of the Constitution, state the case to the relevant court by setting out the question which in its opinion has arisen as to the interpretation or effect of the Constitution, which question must, so far as may be possible, be in a form which permits an answer being given in the affirmative or the negative; and

(b)

upon an application or motion made on any other question of law, state the case to the relevant court by briefly setting out the facts that it considers proved and the question of law to be reserved for the opinion of the relevant court.

(4) Despite subsection (3), the trial court may refuse to state a case upon any application if it considers the application frivolous or without any merit, but it must state a case if the application is made by the Public Prosecutor.

(5) If a trial court refuses to state a case under subsection (4), the applicant may apply to the relevant court for an order to direct the trial court to state the case.

(6) The trial court in stating any case under subsection (3) must cause the case to be transmitted to the Registrar of the Supreme Court.

(7) The relevant court must hear and determine the question of law or constitutional question arising out of the case stated.

(8) Before stating any case to the relevant court under subsection (3)(a), the trial court may make an order to stay the proceedings which is to be made at such stage of the proceedings as the court may see fit, having regard to —(a)

the decision of such questions of fact as may be necessary to assist the relevant court in deciding the question which has arisen; and

(b)

the speedy and economical final determination of the proceedings.

(9) The trial court making an order to stay the proceedings under subsection (8) may impose any terms to await the opinion and order (if any) of the relevant court on any case stated under subsection (3)(a).

(10) The trial court stating a case to the relevant court under this section may make such orders as it sees fit for the arrest, custody or release on bail of any accused.

(11) When the Registrar of the Supreme Court receives a case stated, he or she must send a copy to every party to the proceedings and to the Public Prosecutor (if the Public Prosecutor is not a party), and fix a date for the hearing of the case stated.

(12) The Public Prosecutor has a right of hearing at the hearing of the case stated.

(13) Where the General Division of the High Court is hearing the case stated, it must ordinarily be heard by a single Judge, but if the Chief Justice so directs, the case stated must be heard before a court comprising 3 or any greater uneven number of Judges.[40/2019]

(14) Where the Court of Appeal is hearing the case stated, it must ordinarily be heard by 3 Judges sitting in the Court of Appeal, but if the Chief Justice so directs, the case stated must be heard before a court comprising 5 or any greater uneven number of Judges sitting in the Court of Appeal.[40/2019]

(15) In this section, “relevant court” means —(a)

the General Division of the High Court where the trial court which stated the case is a State Court; and

(b)

the Court of Appeal where the trial court which stated the case is the General Division of the High Court.[5/2014; 40/2019]

—(1) A trial court hearing any criminal case, may on the application of any party to the proceedings or on its own motion, state a case to the relevant court on any question of law.

(2) Any application or motion made —(a)

on a question of law which arises as to the interpretation or effect of any provision of the Constitution may be made at any stage of the proceedings after the question arises and must set out the question to be referred to the relevant court; and

(b)

on any other question of law must be made in writing within 10 days from the time of the making or passing of the judgment, sentence or order by the trial court and set out briefly the facts under deliberation and the question of law to be decided on them.

(3) The trial court must —(a)

upon an application or motion made on a question of law which arises as to the interpretation or effect of any provision of the Constitution, state the case to the relevant court by setting out the question which in its opinion has arisen as to the interpretation or effect of the Constitution, which question must, so far as may be possible, be in a form which permits an answer being given in the affirmative or the negative; and

(b)

upon an application or motion made on any other question of law, state the case to the relevant court by briefly setting out the facts that it considers proved and the question of law to be reserved for the opinion of the relevant court.

(4) Despite subsection (3), the trial court may refuse to state a case upon any application if it considers the application frivolous or without any merit, but it must state a case if the application is made by the Public Prosecutor.

(5) If a trial court refuses to state a case under subsection (4), the applicant may apply to the relevant court for an order to direct the trial court to state the case.

(6) The trial court in stating any case under subsection (3) must cause the case to be transmitted to the Registrar of the Supreme Court.

(7) The relevant court must hear and determine the question of law or constitutional question arising out of the case stated.

(8) Before stating any case to the relevant court under subsection (3)(a), the trial court may make an order to stay the proceedings which is to be made at such stage of the proceedings as the court may see fit, having regard to —(a)

the decision of such questions of fact as may be necessary to assist the relevant court in deciding the question which has arisen; and

(b)

the speedy and economical final determination of the proceedings.

(9) The trial court making an order to stay the proceedings under subsection (8) may impose any terms to await the opinion and order (if any) of the relevant court on any case stated under subsection (3)(a).

(10) The trial court stating a case to the relevant court under this section may make such orders as it sees fit for the arrest, custody or release on bail of any accused.

(11) When the Registrar of the Supreme Court receives a case stated, he or she must send a copy to every party to the proceedings and to the Public Prosecutor (if the Public Prosecutor is not a party), and fix a date for the hearing of the case stated.

(12) The Public Prosecutor has a right of hearing at the hearing of the case stated.

(13) Where the General Division of the High Court is hearing the case stated, it must ordinarily be heard by a single Judge, but if the Chief Justice so directs, the case stated must be heard before a court comprising 3 or any greater uneven number of Judges.[40/2019]

(14) Where the Court of Appeal is hearing the case stated, it must ordinarily be heard by 3 Judges sitting in the Court of Appeal, but if the Chief Justice so directs, the case stated must be heard before a court comprising 5 or any greater uneven number of Judges sitting in the Court of Appeal.[40/2019]

(15) In this section, “relevant court” means —(a)

the General Division of the High Court where the trial court which stated the case is a State Court; and

(b)

the Court of Appeal where the trial court which stated the case is the General Division of the High Court.[5/2014; 40/2019]