Balsiene v New South Wales Land and Housing Corporation; Balsyte v New South Wales Land and Housing Corporation

HIS HONOUR: On 7 May 2025, the Registrar referred these proceedings to me pursuant to s 22 of the Criminal Appeal Act 1912 for determination of whether or not they should be dismissed as incompetent. Section 22(k) of that Act in in the following terms:

The appellants were formerly residents of the Sirius Building at Circular Quay in Sydney. They were charged with and convicted following a contested hearing in the Local Court of offences related to sub-letting their Housing Commission apartment for profit. They were later sentenced.

The appellants appealed to the District Court. They sought leave to adduce fresh evidence under s 18 of the Crimes (Appeal and Review) Act 2001 and sought an adjournment to facilitate that application. The applications were refused by M Williams SC DCJ on 18 December 2024.

The appellants now seek to appeal against his Honour’s interlocutory judgments or orders refusing the application for an adjournment and dismissing the application for leave to tender fresh evidence in the hearing of their appeal against conviction, sentence and costs pursuant to s 18(2) of the Crimes (Appeal and Review) Act. The application for leave is made under s 5F(3)(a) of the Criminal Appeal Act. A question arises as to whether this Court has jurisdiction to entertain their appeal.

The appellants’ submissions can be shortly stated.

They submit that s 5F(1)(a) applies as the proceedings before his Honour Judge Williams were “proceedings…for the prosecution of offenders on indictment…in the District Court”. The term “indictment” is defined in s 2 and “includes any information presented or filed as provided by law for the prosecution of offenders”. It is not limited to the traditional meaning of “indictment”. The appellants contend that there is judicial support for the view that an appeal to the District Court from the Local Court under s 11 of the Crimes (Appeal and Review) Act constitutes a proceeding “for the prosecution of offenders on indictment”: Sasterawan v Morris [2010] NSWCCA 91; (2010) 201 A Crim R 302 per Basten JA at [20]-[22]:

The appellants submitted further that the orders made by his Honour were “an interlocutory judgment or order” for the purposes of s 5F(3):

The appellants submitted further that a “judgment or order” has an element of finality: R v Adamson [2005] NSWCCA 7 at [7]. They noted that this application proceeds on the assumption that the order dismissing the notice of motion seeking the leave of the District Court to give fresh evidence was “final” in the sense that the appellants cannot bring a second such application for leave pursuant to s 18(2) Crimes (Appeal and Review) Act.

The appellants submitted that the “correctness standard” of appellate review applies since there will “only ever be one correct answer” to the two issues raised: whether an adjournment should be allowed, whether leave should be granted under s 18 (2): see R v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [61]; cf R v Passmore (2021) 110 NSWLR 292; [2021] NSWCCA 201 at [29] (correctness standard applies in respect of s 5F review of evidentiary ruling); see also Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293, Basten JA at [24].

Section 176 of the District Court Act 1973 provides:

In the Criminal Appeal Act, the relevant provision is the application provision in s 5F(1)(a), which provides:

The definition of “indictment” in s 2(1) of the Criminal Appeal Act is:

The definition of indictment in the Criminal Appeal Act elides the historical and practical distinction between a trial upon indictment and offences dealt with summarily. This was made clear by Dixon J (with whom Rich J agreed) in Munday v Gill (1930) 44 CLR 38 at 86; [1930] HCA 20, where his Honour said:

This merging of concepts is not limited to the Criminal Appeal Act. In Ch 2 Pt 2 of the Criminal Procedure Act 1986, for example, “indictment” is taken to include “a court attendance notice or any other process or document by which criminal proceedings are commenced”, even though elsewhere, such as in Ch 2 Pt 1 of the Criminal Procedure Act, the term “indictment” is used in contradistinction to offences dealt with summarily. The term “indictment” also appears in Ch 3 Pt 3, Div 2 of the Criminal Procedure Act.

The same inconsistency is found within s 5C of the Criminal Appeal Act. There, the provision refers to the quashing by the Supreme Court or District Court of “any information or indictment”. Treating these two terms distinctly, in view of the inclusive definition of “indictment” in s 2(1) of the Criminal Appeal Act suggests, at least in certain contexts, that the term “indictment” should be given its common meaning. This appears to follow from the chapeau to s 2 of the Criminal Appeal Act, which provides that a term is to take its ascribed definition “unless the context or subject-matter otherwise requires or indicates”.

The difficulty with this inconsistent practice in definition was exposed by Basten JA in Sasterawan v Morris [2010] NSWCCA 91; (2010) 201 A Crim R 302, cited above. Sasterawan is the only case which has raised this particular issue. There is otherwise a consistent and established line of authority which expresses the view that s 176 of the District Court Act clearly intended to limit recourse to the Supreme Court following an appeal in the District Court from a conviction in the Local Court.

For example, in Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92; (2015) 250 A Crim R 154 at [32], Gleeson JA (with whom Ward JA and Johnson J agreed) said:

Likewise, in Nabi v Director of Public Prosecutions (NSW) [2022] NSWCA 92, at [5], Ward P, Meagher JA and Basten AJA said:

Finally, in Truong v Director of Public Prosecutions (DPP) (NSW) [2023] NSWCA 64, at [46], Ward P (with whom Brereton JA and Griffiths AJA agreed) said:

What is clear from the above authorities is that s 5F of the Criminal Appeal Act should be construed in such a way so as to preserve the legislature's intention to narrow the avenues of appeal from orders of the District Court in appeals from the Local Court to instances of jurisdictional error under s 69 of the Supreme Court Act 1970. In circumstances where the introduction of s 176 of the District Court Act postdates s 5F of the Criminal Appeal Act, “[i]t is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied”: see Saraswati v R (1991) 172 CLR 1 at 17; [1991] HCA 21. However, and relevantly, where two statutes are prima facie in conflict, “[i]t will often be found that the two may reasonably and properly be reconciled by reading the one as subject to the other”: Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 276; [1961] HCA 32.

In my view, s 176 of the District Court Act, plainly constrains the avenue of appeals for judicial review asserting jurisdictional error. As such, s 5F of the Criminal Appeal Act, with its general application to appeals from interlocutory decisions made during the prosecution of offenders on indictment in the District Court and Supreme Court, must be read down and/or made subject to the terms of s 176. It follows that the Court of Criminal Appeal does not have jurisdiction to determine this appeal.