Charara v The Director of Public Prosecutions & Ors [2001] NSWCA 140

Charara v The Director of Public Prosecutions & Ors [2001] NSWCA 140

The second proposed question for a stated case was arguable and not frivolous because Latham DCJ arguably took the 1998 offences into account adversely when confirming sentence, and her Honour's refusal therefore involved a mistaken understanding of the question and an effective refusal to exercise jurisdiction. However, relief in the nature of mandamus was refused in the Court's discretion because the facts of the offences and the claimant's criminal history made it clear that any resentencing would result in sentences no less severe than those already imposed, so there was no utility in granting relief.

Jurisdiction
Australia
Judgment Date
15 May 2001
Procedural Posture
Application for a Declaration and Relief in the Nature of Prerogative Relief in Relation to Refusal to State a Case / Court of Appeal Determination of the Claimant's Summons
Outcome
The claimant's summons was dismissed and he was ordered to pay the opponent's costs.
Legal Topics
['case Stated' 'mandamus' 'sentencing Discretion' 'appeal by Way of Rehearing' 'post Offence Convictions' 'prerogative Relief']
['criminal Law' 'criminal Procedure' 'administrative Law'] ['case Stated' 'mandamus' 'sentencing Discretion' 'appeal by Way of Rehearing' 'post Offence Convictions' 'prerogative Relief']

Case Brief

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Procedural Posture

Application for a Declaration and Relief in the Nature of Prerogative Relief in Relation to Refusal to State a Case / Court of Appeal Determination of the Claimant's Summons

Legal Issues

  1. 1 ['Whether the District Court judge was obliged to state a case to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912.' 'Whether the proposed question of law was so obviously frivolous and baseless that its submission would be an abuse of process.' 'Whether the District Court judge arguably took convictions for offences committed after the instant offences into account adversely to the claimant on sentence.' 'Whether the refusal to state a case was an error within jurisdiction or an effective refusal to exercise jurisdiction.' 'Whether relief in the nature of mandamus should be refused as a matter of discretion because any resentencing would produce sentences of at least the same severity.']

Ratio Decidendi

The second proposed question for a stated case was arguable and not frivolous because Latham DCJ arguably took the 1998 offences into account adversely when confirming sentence, and her Honour's refusal therefore involved a mistaken understanding of the question and an effective refusal to exercise jurisdiction. However, relief in the nature of mandamus was refused in the Court's discretion because the facts of the offences and the claimant's criminal history made it clear that any resentencing would result in sentences no less severe than those already imposed, so there was no utility in granting relief.

Court Disposition

The claimant's summons was dismissed and he was ordered to pay the opponent's costs.

Orders

  • ["The claimant's summons be dismissed." "The claimant is ordered to pay the opponent's costs."]