Citation: Xerri (a pseudonym) v R (No 2) [2026] NSWDC 199
Court: District Court of New South Wales
Date: 13 May 2026
Judge(s): Neilson DCJ
Background
The respondent (referred to by a pseudonym) had been convicted by the Local Court on two charges. On appeal to the District Court, the appeal judge set aside both convictions and entered verdicts of not guilty on 19 December 2025. Those orders were final.
The Crown then moved for a case to be stated to the Court of Criminal Appeal under section 5B of the Criminal Appeal Act 1912. The District Court stated the case on 6 February 2026, with the matter listed for hearing in the Court of Criminal Appeal on 25 May 2026.
Shortly before the hearing, the respondent in the Court of Criminal Appeal (the former appellant before the District Court) filed a notice of motion seeking to amend the stated case to include two additional factual matters that had not been incorporated when the case was originally stated.
Legal Issues
- Whether the District Court retains jurisdiction to amend a stated case after it has made final orders disposing of the appeal, or whether it is functus officio (meaning its authority over the matter has ended).
- Whether any amendment to the stated case would, in any event, breach the time limit imposed by section 5B(2) of the Criminal Appeal Act 1912.
- Whether discretionary factors independently warranted refusal of the application.
Decision
Issue 1: Functus officio and jurisdiction
The court held that it was functus officio and had no power to amend the stated case (at [12]). Final orders were made on 19 December 2025, and those orders determined the proceedings before the District Court. Once those orders were made, the court's authority over the matter was spent, regardless of the subsequent stating of a case to the Court of Criminal Appeal.
Issue 2: Breach of the statutory time limit
The court found that, even if jurisdiction existed, amending the case at this point would breach section 5B(2) of the Criminal Appeal Act 1912 (at [12]). That provision requires questions of law to be submitted no later than 28 days after the end of appeal proceedings, or within a longer period allowed by the Court of Criminal Appeal (at [7]). The applicant had not sought leave from the Court of Criminal Appeal to approach the District Court to make the amendments, and the 28-day period had long passed (at [20]).
Issue 3: Discretionary refusal
The court also identified independent discretionary grounds to refuse the application (at [21]). The application was made very late, arriving only after the Crown had filed its written submissions in the Court of Criminal Appeal. When the case was originally stated, the respondent appeared in person and made submissions that influenced the content of the stated case, so he had not been without a voice in the process (at [21]).
Observations on the amendments sought
The court noted that the two proposed amendments were relatively minor, and that, if it had power to do so, it would have inserted the second of the two additions (at [15]). However, the absence of jurisdiction made this a moot point.
Orders Made
- Application dismissed.
Key Takeaways
- The District Court held that it becomes functus officio upon making final orders in an appeal from the Local Court, and therefore has no jurisdiction to amend a stated case after that point, even where the case itself was stated at a later date (at [12]).
- Under section 5B(2) of the Criminal Appeal Act 1912, questions of law must be submitted to the Court of Criminal Appeal within 28 days of the end of appeal proceedings, unless the Court of Criminal Appeal allows a longer period (at [7]). A party seeking an amendment to an already-stated case cannot bypass this time limit by returning to the stating court without first obtaining leave from the Court of Criminal Appeal (at [20]).
- Distinct from the jurisdictional bar, the court confirmed that discretionary factors, including the lateness of an application and the fact that a party had input into the original case stated, may independently justify refusal (at [21]).
- The decision illustrates the highly technical nature of the stated case procedure under the Criminal Appeal Act 1912, with the judge observing that the procedure may warrant legislative attention, including consideration of whether the DPP should have a direct right of appeal from the District Court to the Court of Criminal Appeal (at [20]).
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 , ss 5AE, 5B
Cases
- Grassby v R [1989] 87 ALR 618 at 628
- Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39
- Orr v Hunter Quarries Pty Ltd (No 5) [2021] NSWDC 171
- Talay v R [2010] NSWCCA 308 at [61]-[64]
- Xerri (a pseudonym) v R [2025] NSWDC 542