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allows courts to reserve questions of law for determination by the Court of Appeal. There are two main changes from the existing case stated provisions in sections 446 and 447 of the Crimes Act 1958, namely the clause—
removes the ability to state a case on the accused's application after conviction. In view of the right to appeal against conviction, this process is now obsolete;
removes the restriction on the procedure only being available on the accused's application. It will now (by operation of clause 337) also be available on application by the DPP or on the court's own motion.
The court can only reserve a question of law arising before or during the trial for determination by the Court of Appeal if it is the interests of justice to do so. In determining the interests of justice, the court must have regard to the same factors as the Court of Appeal must have regard to when granting leave to appeal an interlocutory decision, namely—
the extent of any disruption or delay to the trial process that may arise if the question of law is reserved; and
whether the determination of the question of law may—
render the trial unnecessary; or
substantially reduce the time required for the trial; or
resolve a novel question of law that is necessary for the proper conduct of the trial; or
reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial.
This is an extension from the current test which only allows a question of law to be reserved if it could render the conduct of the trial unnecessary. In two recent Supreme Court cases (R v Pepper [2007] VSC 234 and DPP v McAllister [2007] VSC 315) the case stated provision could not be used because no matter what decision was made on the question of law, a trial would still be necessary. Clause 302 will allow such questions to be reserved. As in interlocutory appeals, the court cannot reserve a question of law after a trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial. The new section 15C of the Appeals Costs Act 1998 in Part 9.6 of the Bill applies to case stated procedures.