Shapkin v Director of Public Prosecutions (No 2) [2024] NSWCA 263

Shapkin v Director of Public Prosecutions (No 2) [2024] NSWCA 263

The District Court judge’s refusal to state a case under s 5B of the Criminal Appeal Act 1912 (NSW) was a valid exercise of discretionary power; no jurisdictional error occurred because the judge took into account relevant statutory and discretionary factors, and there was no mandatory duty to state a case upon presentation of a question of law. Errors, if any, were within jurisdiction and not amenable to review. The application for a stay failed as the sentence had already been served and convictions could not be stayed.

Parties
Applicant: Vladimir Shapkin; First Respondent: Director of Public Prosecutions (NSW); Second Respondent: District Court of New South Wales
Jurisdiction
Australia
Judgment Date
05 November 2024
Procedural Posture
Judicial Review (summons) and Notice of Motion Seeking Stay / Court of Appeal – Disposition of Summons and Notice of Motion
Outcome
Summons dismissed; application for stay refused; costs to the First Respondent.
Legal Topics
Jurisdictional Error, Judicial Review, Stated Case Procedure, Exercise of Discretion, Criminal Appeals, Stay of Convictions
Administrative Law Criminal Procedure Jurisdictional Error Judicial Review Stated Case Procedure Exercise of Discretion Criminal Appeals Stay of Convictions

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Parties

Vladimir Shapkin

Applicant

Director of Public Prosecutions (NSW)

First Respondent

District Court of New South Wales

Second Respondent

Procedural Posture

Judicial Review (summons) and Notice of Motion Seeking Stay / Court of Appeal – Disposition of Summons and Notice of Motion

Legal Issues

  1. 1 Whether the District Court judge committed jurisdictional error by refusing to state a case to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW)
  2. 2 Whether the District Court judge took into account irrelevant considerations or misapprehended the limits of her powers in exercising discretion under s 5B
  3. 3 Whether a stay of convictions or sentence should be granted after the sentence has been served

Ratio Decidendi

The District Court judge’s refusal to state a case under s 5B of the Criminal Appeal Act 1912 (NSW) was a valid exercise of discretionary power; no jurisdictional error occurred because the judge took into account relevant statutory and discretionary factors, and there was no mandatory duty to state a case upon presentation of a question of law. Errors, if any, were within jurisdiction and not amenable to review. The application for a stay failed as the sentence had already been served and convictions could not be stayed.

Court Disposition

Summons dismissed; application for stay refused; costs to the First Respondent.

Orders

  • Summons dismissed.
  • Application for stay refused.