Forrest v Director of Public Prosecutions (NSW)

The applicant, Forrest, sought judicial review of a decision by a District Court judge to refuse a request to state a case to the Court of Criminal Appeal of New South Wales. Forrest had appealed a conviction from the Local Court to the District Court, which dismissed the appeal. Subsequently, Forrest requested the District Court judge to submit a question of law to the Court of Criminal Appeal pursuant to section 5B of the *Criminal Appeal Act 1912* (NSW). This request was made shortly before the statutory timeframe for such a request expired, and the judge declined to state a case.

The central legal issue before the Court of Criminal Appeal was whether the power conferred on a District Court judge by section 5B of the *Criminal Appeal Act 1912* (NSW) to state a case to the Court of Criminal Appeal on the request of a party was discretionary or whether it imposed a duty to exercise that power upon a valid request. Relatedly, the Court considered whether the timing of the request, which allegedly did not allow sufficient time for the judge to prepare a stated case, affected any such duty, and whether the nature of the appeal, concerning inferences drawn from facts, constituted a jurisdictional fact that would engage the judge's power.

The Court of Criminal Appeal held that the use of the word "may" in section 5B, particularly in light of legislative amendments and High Court authority, indicated a discretion rather than a duty. The Court reasoned that while the power to state a case exists, it is not mandatory for a judge to do so upon request. The judge was therefore not obliged to state a case, and their refusal did not constitute a jurisdictional error. The Court further noted that the appeal did not raise a question of law in the manner contemplated by section 5B, as it primarily concerned the drawing of inferences from established facts.

The summons was dismissed, and the applicant was ordered to pay the respondent’s costs in the Court of Criminal Appeal.