The Court held that a prosecutor's voluntary withdrawal of a private prosecution, which results in a deemed dismissal under s 208 of the Criminal Procedure Act 1986 (NSW), does not constitute an 'order made by the Local Court dismissing a matter' sufficient to enliven a right of appeal under s 56(1)(c) of the Crime (Appeal and Review) Act 2001 (NSW). The distinction between a judicial adjudication on the merits (s 205) and a statutory deemed dismissal following withdrawal (s 208) is one of substance: where the Local Court has not adjudicated on any matter, there can be no question of law on which the Court erred. Even if a right of appeal existed, the Court identified powerful discretionary considerations against granting leave to amend, including that the prosecutor chose withdrawal over a course that would have produced merits determinations, thereby depriving defendants of the finality protections in ss 205-206, and then sought to subject those same defendants to an appeal.
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