Citation: Xerri (a pseudonym) v R (No 2) [2026] NSWDC 199
Court: District Court of NSW
Date: 13 May 2026
Judge: Neilson DCJ
Background
This matter arose from a criminal appeal to the District Court from the Local Court. The respondent had been convicted in the Local Court on two charges. On 19 December 2025, Neilson DCJ allowed the appeal, set aside the conviction and sentence, and found the respondent not guilty of both charges.
Following that final determination, the Crown (the appellant before the District Court) moved to have a case stated to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912. Neilson DCJ stated the case on 6 February 2026. The matter was listed for hearing before the Court of Criminal Appeal on 25 May 2026.
Shortly before that hearing, the respondent filed a notice of motion seeking to amend the stated case. The application came before Neilson DCJ on 13 May 2026, the same day the respondent's written submissions to the Court of Criminal Appeal were due.
Legal Issues
- Whether the District Court retains jurisdiction to amend a stated case after final orders have been made and the stated case has been referred to the Court of Criminal Appeal, or whether the District Court is functus officio (meaning its jurisdiction over the matter is exhausted once final orders are made).
- Whether any implied power drawn from Grassby v R could ground jurisdiction to permit the amendment.
- Whether, even if jurisdiction existed, the application should be refused on discretionary grounds.
Decision
Issue 1: Jurisdiction under s 5B after final orders
Neilson DCJ distinguished between s 5AE and s 5B of the Criminal Appeal Act 1912. Section 5AE operates during live proceedings, before final orders are made. Section 5B, by contrast, is the mechanism used after appeal proceedings in the District Court have been disposed of. His Honour noted that s 5B(2) imposes a strict 28-day time limit after the end of appeal proceedings (subject to extension by the Court of Criminal Appeal), which underscored that Parliament contemplated the stated case process under s 5B as occurring after the District Court's jurisdiction over the appeal had concluded.
The Orr v Hunter Quarries line of authority assisted on the distinction. In that matter, Russell DCJ had found the District Court was not functus officio because no final orders had been made at the time the s 5AE stated case was submitted. The Court of Criminal Appeal upheld the ability to add questions under s 5AE in those circumstances. Neilson DCJ observed that the present case was materially different: final orders had been made and the stated case under s 5B had already been submitted to the Court of Criminal Appeal.
Issue 2: Implied powers under Grassby v R
The respondent relied on the High Court's statement in Grassby v R that every court possesses jurisdiction arising by implication, sufficient to enable the exercise of powers expressly granted. Neilson DCJ acknowledged the principle but declined to apply it here. The explicit 28-day time limit in s 5B(2), and the absence of any application to the Court of Criminal Appeal for leave to approach the District Court to seek the amendment, weighed against any implied power being available.
Issue 3: Discretionary refusal
Even if jurisdiction had existed, his Honour identified discretionary reasons to refuse the application. The respondent had appeared in person when the case was stated, made submissions, and had input into its terms. The application was made very late, after the Crown had already filed its written submissions to the Court of Criminal Appeal and only days before the matter was listed for call-over. The combination of lateness and the respondent's prior participation in formulating the stated case told against granting relief.
Orders Made
- The notice of motion was dismissed.
Key Takeaways
- The District Court held that s 5B of the Criminal Appeal Act 1912 operates after District Court appeal proceedings are disposed of, and the court's jurisdiction over the matter does not continue in a way that permits it to amend a stated case once final orders have been made.
- The distinction between s 5AE and s 5B is significant: s 5AE applies during live proceedings before final orders, while s 5B is the post-determination mechanism, and the two provisions carry different jurisdictional consequences.
- A party seeking to amend a stated case under s 5B after final orders had not, on the facts here, obtained leave from the Court of Criminal Appeal to approach the District Court for that purpose, and this absence further undermined the application.
- Implied powers derived from Grassby v R will not readily override explicit statutory time limits or procedures governing the stated case mechanism.
- Neilson DCJ observed that the stated case procedure is technically demanding and suggested it may warrant legislative attention, noting the absence of a straightforward right of appeal for the Director of Public Prosecutions from the District Court to the Court of Criminal Appeal.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5AE, 5B
Cases:
- Xerri (a pseudonym) v R [2025] NSWDC 542
- Orr v Hunter Quarries Pty Ltd (No 5) [2021] NSWDC 171
- Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39
- Grassby v R (1989) 87 ALR 618
- Talay v R [2010] NSWCCA 308