In Victoria, a question reserved under s 302 of the Criminal Procedure Act 2009 must be a 'pure' question of law whose character as such is apparent on its face, and must not draw the Court of Appeal into questions of fact. The approach in R v Peters (a pseudonym) [2018] VSCA 115, which treated the question of whether a critical finding of fact was 'open' as a question of law, should not be followed. A question asking whether it was 'open' to a trial judge to make a particular evaluative finding is a factual inquiry, not a question of law. Public interest immunity determinations involve an evaluative exercise that is inevitably a compound of factual and legal considerations, and the correctness of such a determination cannot be reserved as a question of law under s 302.
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