Under s 5AE of the Criminal Appeal Act 1912 (NSW), only 'pure questions of law' — which have not first been determined by the primary judge, do not involve questions of fact, and whose character as a question of law can be recognised on the face of the question — may be submitted to the Court of Criminal Appeal for determination. Questions framed as 'was it open to find' or 'did I err in law' are not questions of law for the purposes of s 5AE. The Court of Criminal Appeal has a discretion to decline to answer questions submitted under s 5AE where it considers it inappropriate to do so. The practice of prosecutors seeking adjournments after delivery of reasons (but before formal orders) to consider requiring the trial judge to state a case under s 5AE does not create a de facto right of appeal from acquittal, but the questions stated must be genuine pure questions of law.
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