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

Medium Neutral Citation: Balsiene v New South Wales Land and Housing Corporation; Balsyte v New South Wales Land and Housing Corporation [2025] NSWCCA 70

Hearing dates: On the papers

Date of orders: 27 May 2025

Decision date: 27 May 2025

Before: Harrison CJ at CL

Decision: The Court of Criminal Appeal does not have jurisdiction to determine this appeal.

Catchwords: APPEALS – issue of jurisdiction – leave sought to appeal against a District Court interlocutory judgment – where District Court proceedings were an appeal against a Local Court conviction – where District Court Judge dismissed application for adjournment and leave to tender fresh evidence – leave sought pursuant to s 5F(3)(a) Criminal Appeal Act 1912 – whether the Court of Criminal Appeal has jurisdiction to entertain the appeal – whether appeal should be dismissed as “incompetent” – whether a party can appeal to the Supreme Court following an appeal in the District Court from a Local Court conviction
WORDS AND PHRASES – “indictment” – s 5F(1)(a) Criminal Appeal Act 1912 – whether s 5F should be read down and/or made subject to the terms of s 176 District Court Act 1973

Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18
Criminal Appeal Act 1912 (NSW), ss 2, 5C, 5F, 22
Criminal Procedure Act 1986 (NSW), Ch 2 Pts 1-2, Ch 3 Pt 3 Div 2
District Court Act 1973 (NSW), s 176
Supreme Court Act 1970 (NSW), s 69

Cases Cited: Butler v Attorney-General (Vic) (1961) 106 CLR 268; [1961] HCA 32
Cheih-Wei Lin v R [2015] NSWCCA 264
Cucu v District Court of NSW (1994) 73 A Crim R 240
Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293
Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92; (2015) 250 A Crim R 154
Munday v Gill (1930) 44 CLR 38; [1930] HCA 20
Nabi v Director of Public Prosecutions (NSW) [2022] NSWCA 92
PJ v R (2023) 111 NSWLR 414; [2023] NSWCCA 105
R v Adamson [2005] NSWCCA 7
R v Bauer (2018) 266 CLR 56; [2018] HCA 40
R v Gilfillan [2003] NSWCCA 102; (2003) 139 A Crim R 460
R v Passmore (2021) 110 NSWLR 292; [2021] NSWCCA 201
R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76
R v Steffan (1993) 30 NSWLR 633
Saraswati v R (1991) 172 CLR 1; [1991] HCA 21
Sasterawan v Morris [2010] NSWCCA 91; (2010) 201 A Crim R 302
Secretary, Department of Planning and Environment v Harris [2024] NSWCCA 88
Truong v Director of Public Prosecutions (DPP) (NSW) [2023] NSWCA 64

Category: Principal judgment

Parties: In 2017/225763:
Genute Balsiene (Appellant)
New South Wales Land and Housing Corporation (Respondent)
In 2017/329045:
Saule Balsyte (Appellant)
New South Wales Land and Housing Corporation (Respondent)

Representation: Counsel:
A Di Francesco (Respondent)
Solicitors:
Department of Communities and Justice (Respondent)

File Number(s): 2017/225763 (Balsiene); 2017/329045 (Balsyte)

Publication restriction: Nil

Decision Under Appeal

JUDGMENT

1. 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:

22 Powers of a judge sitting alone

(1) The following powers of the court may be exercised by any Judge of the Supreme Court designated by the Chief Justice in the same manner as they may be exercised by the court, and subject to the same provisions--

…

(k) the power to dismiss an appeal as incompetent,…

Background

2. 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.

3. 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.

4. 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.

Submissions

5. The appellants’ submissions can be shortly stated.

6. 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]:

“[20] Neither of sub-ss (1) nor (5) provides the basis for an appeal. Indeed, in relation to sub-s (1), it might be thought surprising that s 5F applies at all to appeals in the District Court from convictions in a Local Court. Such proceedings would not ordinarily be understood as involving ‘the prosecution of offenders on indictment’. However, the term ‘indictment’ is defined to include ‘any information presented or filed as provided by law for the prosecution of offenders’: Criminal Appeal Act, s 2(1).

[21] There is a sense in which this definition reverses common usage, whereby an indictment is a sub-class of information: see, eg, Criminal Procedure Act 1986 (NSW), s 8 and John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; 163 CLR 508 at 516-517 (Mason CJ, Deane and Dawson JJ), discussing the concept of quashing an information, within s 5C of the Criminal Appeal Act, which deals with both informations and indictments, perhaps inconsistently with the definition of ‘indictment’.

[22] It is sufficient to assume, without deciding, that an appeal to the District Court from a Local Court under Pt 3 (including s 11) of the Appeal and Review Act constitutes a proceeding ‘for the prosecution of offenders on indictment’. That is sufficient, because the applicant must fail in seeking to bring himself within sub-s 5F(3).”

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

(a) the order refusing the application for an adjournment was an order that the hearing to determine whether leave would be granted pursuant to s 18(2) should proceed (a “command that [anything] be done”: R v Steffan (1993) 30 NSWLR 633 at 638); s 5F is available on the basis that an adjournment should have been allowed: Cucu v District Court of NSW (1994) 73 A Crim R 240; see also Cheih*-Wei Lin v R* [2015] NSWCCA 264; the refusal of an adjournment to obtain new legal representation during a trial has been overturned pursuant to s 5F: R v Gilfillan [2003] NSWCCA 102; (2003) 139 A Crim R 460. (b) the order dismissing the notice of motion seeking the leave of the District Court to give fresh evidence in the hearing of an appeal against conviction pursuant to s 18(2) Crimes (Appeal and Review) Act was an order that the hearing of the appeal against conviction under s 11 proceed on the basis of the evidence given in the Local Court without the giving of any fresh evidence (a “command [by a court] that something be … not done”: R v Steffan (1993) 30 NSWLR 633 at 635); it may be contrasted with a ruling on the admissibility of evidence which does not constitute a command; it concerned an anterior step in that it was an order that the applicants not give fresh evidence: Secretary, Department of Planning and Environment v Harris [2024] NSWCCA 88 at [50]; see also R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76; the ruling in PJ v R (2023) 111 NSWLR 414; [2023] NSWCCA 105 may be distinguished on the basis that “the refusal … to permit the recall of [the] children for further cross-examination” is “close” to “limiting the scope of cross-examination or otherwise rejecting a line of questioning” (see Basten AJA at [17] and [31]), in contrast with the present ruling which ordered that the appeal proceed on the basis of the evidence given in the Local Court without the giving of any fresh evidence (compare Hamill J at [95]: “a decision that the witnesses give no further evidence at all”).

8. 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.

9. 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].

Relevant Provisions

10. Section 176 of the District Court Act 1973 provides:

176 No proceedings in the nature of certiorari

No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court.

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

5F Appeal against interlocutory judgment or order

(1) This section applies to--

(a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and

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

2 Definitions

(1) In this Act, unless the context or subject-matter otherwise requires or indicates--

"Indictment" includes any information presented or filed as provided by law for the prosecution of offenders.

Consideration

13. 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:

“There is, however, a great distinction in history, in substance and in present practice, between summary proceedings and trial upon indictment. Proceedings upon indictment, presentment, or ex officio information, are pleas of the Crown. A prosecution for an offence punishable summarily is a proceeding between subject and subject. The former are solemnly determined according to a procedure considered appropriate to the highest crimes by which the State may be affected and the gravest liabilities to which a subject may be exposed. The latter are disposed of in a manner adopted by the Legislature as expedient for the efficient enforcement of certain statutory regulations with respect to the maintenance of the quiet and good order of society.”

14. 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.

15. 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”.

16. 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.

17. 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:

“There is no right of appeal to this court from a decision of the District Court on an appeal against a conviction or sentence in the Local Court. The absence of any appeal from the District Court in such cases is long standing and deliberate. Section 176 of the District Court Act 1973 (NSW) provides that no adjudication on appeal of the District Court is to be removed by any order into the Supreme Court. However, it is well established that the effect of s 176 is not to exclude proceedings by way of judicial review by this court, but limit their availability to cases in which the applicant can demonstrate jurisdictional error.”

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

“There is no right of appeal from a judgment of the District Court in an appeal from the Local Court; accordingly, the proceeding in this Court must engage the supervisory jurisdiction of this Court under s 69 of the Supreme Court Act. Although that jurisdiction, if unqualified, may include errors of law which appear on the face of the record of the inferior court or tribunal, no such basis of review is available in the present matter as a result of the restrictive operation of s 176 of the District Court Act 1973 (NSW). Accordingly, the only available ground of review is jurisdictional error.”

19. 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:

“As the respondent has noted, there is no right of appeal to this Court from a decision of the District Court on appeal from the Local Court in a criminal matter (Jamal v DPP (NSW) [2019] NSWCA 121 (Jamal) at [8]). Nor is any application for review of the District Court's decision or orders an appeal or review of the Local Court proceedings (since the orders of the Local Court have been superseded by the orders of the District Court made on the appeal pursuant to s 11 of the Crimes (Appeal and Review) Act and are not amenable to review - see Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 (Garde) at [10]-[11] and Jamal at [52]). Hence the complaints here made by the applicant as to the conduct of the Local Court proceedings are of no relevance on the present application.”

20. 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.

21. 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.

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