Gibson v Director of Public Prosecutions (NSW) (No 2)

The applicant, Gibson, sought judicial review of a decision by a District Court judge who had declined to refer questions of law to the Court of Criminal Appeal of New South Wales. The dispute arose after the applicant, through informal communication with the Registrar of the Local Court, requested the judge to state a case to the Court of Criminal Appeal. The judge refused this request, and the applicant was advised of this refusal via email from the Registrar.

The Court of Criminal Appeal was required to determine whether the questions the applicant sought to refer were "questions of law" for the purposes of s 5B of the Criminal Appeal Act 1912 (NSW). It also had to consider whether any jurisdictional error by the primary judge in finding she lacked the power to refer the questions due to being *functus officio* was material, and whether relief should be granted in the exercise of the Court's discretion, given its lack of demonstrated utility.

The Court reasoned that the questions sought to be referred were plainly not pure questions of law. Consequently, any potential jurisdictional error by the primary judge in concluding she was *functus officio* and thus lacked the power to refer the questions was immaterial. The Court also noted that no formal order dismissing the request was made, nor were reasons published, with the applicant being informed of the refusal via email. Ultimately, the Court exercised its discretion to withhold relief due to the lack of demonstrated utility of the proposed referral.

The Court ordered that time be extended for the filing of the Summons, but the Summons was subsequently dismissed with costs.