Belan v Office of the Director of Public Prosecutions

Court of Appeal (NSW)|2021-04-23|Before: Meagher JA, Leeming JA, McCallum JA

of New South Wales (Second Defendant) Representation: Counsel: M Higgins, S Lawrence (Plaintiff) B K Baker, K E Heath (First Respondent)

Solicitors: Hal Ginges and Company (Plaintiff) C Hyland, Office of the Director of Public Prosecutions (First Defendant) Crown Solicitor's Office (submitting) (Second Defendant) File Number(s): 2020/365256; 2021/109835 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2020] NSWDC 715 Date of Decision: 25 September 2020 Before: King SC DCJ File Number(s): 2016/00344587

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

MEAGHER JA: I agree with Leeming JA.
LEEMING JA: Mr Derrick Belan was formerly the General Secretary of the New South Wales branch of the National Union of Workers. He is presently serving a sentence of imprisonment for four years, with a non-parole period of three years, imposed by the Local Court and confirmed by the District Court following his appeal against conviction being dismissed and his appeal against sentence being withdrawn. By summons filed in this Court's supervisory jurisdiction, he challenges his convictions and sentence. He seeks that the proceedings be remitted to the District Court to be heard and determined in accordance with law. He also seeks (both in the summons and by separate application) a grant of bail. For the reasons which follow, I have concluded that his summons should be dismissed.

Proceedings in the Local Court

Mr Belan was charged with 64 offences alleging that he had misused his position to obtain money, goods and services between 2010 and 2015, all save two of which were allegations of fraud contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). Although that offence attracts a maximum penalty of 10 years' imprisonment, if prosecuted on indictment, the Crown proceeded summarily in the Local Court of New South Wales, where the maximum penalty that can be imposed for the offence is 2 years' imprisonment.
The nature of the alleged offending fell into two broad classes. One was the misuse of union credit cards and bank accounts by Mr Belan for personal benefits for himself and his family. The second involved the creation of false invoices which the union paid and in respect of which Mr Belan obtained a benefit.
The total loss to the union was substantially in excess of $500,000.
Mr Belan ultimately pleaded guilty to two of the charges, and three were withdrawn. After a summary hearing lasting some nine days in the Local Court, Mr Belan was convicted on 23 March 2018 of 59 of the 60 unresolved charges. Sequence 21 was dismissed as a back-up. The Local Court rejected Mr Belan's claim that it was his niece, Ms Danielle O'Brien, who was also the union's bookkeeper, who caused the monies to be spent. The Local Court also rejected Mr Belan's claim that he had no knowledge of the misuse of union funds. Immediately following his conviction, the prosecution applied for bail to be revoked. The application was opposed, but the Magistrate acceded to it, saying: "Mr Belan, I have found you guilty of the charges, I have not yet sentenced you. I do want further evidence before I go to that length. However, the number of charges, the criminality that is involved, the amount of money that is involved, the extraordinary breach of trust of all of the members who were contributing from their meagre wages for you to spend it on frivolities such as these charges, in my opinion, tip it over to a matter where the Court must consider a custodial sentence."
I did not understand there ever to have been any dispute that the union funds to which Mr Belan had access were only authorised to be used for union purposes. The "frivolities" to which her Honour referred included: 1. Some 100 transactions over some three years in which Mr Belan purchased goods at a total cost of over $40,000 from the online retail store "Catch of the Day", including children's clothing, children's toys (such as a Frozen-themed cubby house) and household and electronic items, which were delivered either to Mr Belan's union office address or to his home address (Sequence 2), 2. some $417 spent on beauty treatment for Mr Belan's ex-wife (Sequence 10), 3. some $1,850 spent on on-board purchases during a P&O cruise which Mr Belan attended with his partner (Sequence 14), 4. some $432 spent on a tattoo which Mr Belan obtained at a tattoo parlour in western Sydney (Sequence 17), 5. some $1,862 spent on Botox treatment for Mr Belan and Ms O'Brien at a laser clinic in western Sydney (Sequence 26), 6. some $5,215 spent on the purchase, installation and set-up of a television, gaming devices and other electronics at a property in western Sydney rented by Mr Belan, invoiced to the union and paid for by union cheques (Sequence 27), 7. some $342 spent on electronics for Mr Belan's ex-wife (Sequence 28), 8. some $15,950 spent on the purchase of a Peugeot convertible motor vehicle for Mr Belan's mother, invoiced to the union and paid for by electronic funds transfer (Sequence 32), 9. some $2,040 spent on a gaming computer for Mr Belan's personal use (Sequence 35), and 10. some $35,000 spent on the purchase of a Harley Davidson motorcycle for Mr Belan (Sequence 47).
Other aspects of the fraud alleged included: 1. some $4,770 spent on dental treatment for Mr Belan's son, either through charges to a union credit card or through electronic funds transfer from a union bank account after an invoice was rendered upon the union (Sequences 3 and 4), 2. some $180,000 spent on rental accommodation in Western Sydney for Mr Belan and his partner or ex-wife, paid for either with union credit cards, by direct electronic funds transfer from union bank accounts, or by pre-authorised cheques co-signed by Mr Belan (Sequences 5, 6, 7, 22, 23 and 29), 3. some $17,750 spent on renting storage for household items (Sequence 8), 4. over $82,275 spent on personal legal expenses relating to an apprehended violence order sought against Mr Belan by his partner (Sequence 12), 5. some $1,739 spent on payments to Roads and Maritime Services for vehicle registration renewals over several years (Sequences 36, 37, 38 and 39), 6. some $3,300 spent on personal items, including baby formula, nappies, cigarettes, toys and groceries purchased at Woolworths Supermarkets between 2012 and 2015 using union credit cards (Sequence 40), and 7. some $48,400 spent on automotive repair and servicing payments in respect of various vehicles (Sequences 48-61).
Some of the charges were based not on the use of credit cards or electronic funds transfers, but on Mr Belan's participating in a scheme with Mr Angelo Millena to produce false invoices which would be rendered upon the union and paid, from which he would receive a benefit. In total, some $318,381 was spent paying these invoices. This amount included the money referred to above spent on rental accommodation, Botox treatment, electronic equipment, Mrs Belan's Peugeot, Mr Belan's gaming computer, and Mr Belan's Harley Davidson motorcycle, as well as invoices rendered for: 1. some $51,315 billed for renovation work carried out at an address adjacent to the union office in Granville (there is no record of any such work being carried out) (Sequence 19), 2. some $1,848 billed as "[o]ut of scope technical/consulting support services", comprising $1,680 in wages to "a new junior" at work who was the son of Mr Belan's partner, plus 10% GST (Sequence 24), 3. some $700 billed as an "out of hours onsite visit" for money paid to the Penrith Rovers Football Club (Sequence 25), 4. some $24,693 billed to cover the payment of an Audi motor vehicle purchased for the exclusive use of Ms Danielle O'Brien (Sequence 30), 5. some $23,387 billed for "Database development services", which in fact was money spent on the purchase of a Mazda motor vehicle at Mr Belan's request, the declared value of which was $9,500 (Sequence 31), 6. some $6,545 for reimbursement of a cash payment made to Mr Belan by Mr Angelo Millena (Sequence 46), and 7. some $4,948 to cover the cost of the purchase of a Canon camera for Mr Belan's personal use, billed as "Software Developing work for Membership system" (Sequence 62).
There was a separate sentencing hearing on 18 June 2018. The Magistrate then gave an oral judgment imposing sentence. Her Honour had regard to Mr Belan's criminal record, including convictions for stealing, drug possession (most recently in April 2016) and domestic charges for stalk and intimidate (most recently in October 2016). The Court noted that he had been a compliant prisoner over the previous three months since the revocation of bail. A pre-sentence reported stated that he had previously had a gambling addiction, and had used cocaine and methamphetamines, but had been largely free from these substances since 2016. The report said that he intended to appeal his convictions and that he blamed his niece; both matters are inconsistent with remorse.
Also tendered were two psychological or psychiatric reports, which dealt with his family history (a violent, alcoholic father, and more recently a toxic relationship with a woman with whom he had a child who had been taken into care), and which diagnosed symptoms consistent with PTSD.
The Local Court also had regard to the amount of union funds taken (in excess of $650,000 (this was later reduced to approximately $585,000), the absence of remorse, the absence of any discount save for the two offences to which he had pleaded guilty, the system which had been set up to reduce scrutiny and to maximise benefits flowing to himself, and the sustained breach of trust.
The Court imposed an aggregate sentence of imprisonment of four years, with a non-parole period of three years, backdated to 23 March 2018. Although her Honour had noted that the Local Court was constrained to that Court's jurisdictional limit, her Honour specified indicative sentences of 3 years for many of the offences. The Local Court was authorised to impose an aggregate sentence of no more than 5 years' imprisonment: Crimes (Sentencing Procedure) Act 1999 (NSW), s 53B. However, each of the indicative sentences, which should have reflected the sentence imposed for each offence had a separate sentence been imposed, should have been no more than 2 years' imprisonment.

Proceedings in the District Court and Supreme Court

Mr Belan appealed to the District Court on the same day as sentence was imposed. He appealed against both his conviction and his sentence. Statute permitted him to do so as of right: Crimes (Appeal and Review) Act 2001 (NSW), s 11. In many cases, the execution of a sentence imposed by the Local Court is automatically stayed upon the lodging of an appeal, by reason of s 63 of that statute. However, because Mr Belan was in custody when he was sentenced, the automatic stay of execution effected by s 63 only applied from when he was entitled to be released on bail under s 14 of the Bail Act 2013 (NSW): see s 63(2)(c).
On 9 September 2019, Mr Belan was granted bail by the Supreme Court. Although the submission was put that the appeal against conviction had strong prospects of success, the principal matter relied on was that, without a grant of bail, Mr Belan would have served some 18 months imprisonment by the time his appeal was heard.
The reasons for the grant of bail disclose that Mr Belan's appeal to the District Court had been listed in late 2019. This was vacated, in circumstances not fully disclosed by the evidence in this Court. The papers were voluminous but ultimately the points were of a narrow compass. Ultimately, it was heard on a single day, 11 August 2020. Both Mr Belan and the Crown appeared by AVL. The primary judge reserved his decision.
The appeal against conviction was dismissed on 25 September 2020. Mr Belan and his counsel were physically present in the court when the primary judge delivered an oral judgment.
Grounds 3 and 4 of Mr Belan's summons in this Court maintain that one aspect of the reasoning as to conviction on some of the charges (namely, those involving the misuse of credit cards) is attended by jurisdictional error. Speaking generally, they turn on the proposition that the Crown was confined to a case that the deception occurred at the time of the transactions. Mr Belan maintained in this Court and in the District Court that the vendors and suppliers who provided goods and services and were paid by credit card were not deceived, and that if anyone was deceived, it was the union officials who authorised payment of the credit card later in time, with the consequence, so it was put, that those convictions should have been quashed, being outside the case advanced by the Crown.
Immediately after dealing with the conviction appeal, the Court turned to deal with the appeal against sentence. It was common ground in this Court that both counsel who had appeared in the District Court had expected an adjournment. It will be necessary in light of the allegations of apprehended bias to deal with the transcript of that day in some detail. However, albeit with obvious reluctance, the primary judge granted the adjournment sought by Mr Belan, until 23 October 2020.
His Honour also revoked bail at the conclusion of the hearing on 25 September 2020. His Honour did so without hearing from Mr Belan, and the Crown conceded that this amounted to a denial of procedural fairness. Counsel then appearing for Mr Belan also applied, summarily, that his Honour disqualify himself, which his Honour summarily rejected (the entirety of the transcript is reproduced below).
Thereafter Mr Belan and his lawyers prepared a further application for bail, to the Supreme Court, but with the benefit of legal advice, chose not to advance it. Instead, he filed a separate application for habeas corpus, which was heard, urgently, by the Supreme Court constituted by Johnson J over parts of three days on 19, 20 and 21 October 2020. His Honour made orders on 21 October, and published reasons the following week: Belan v Commissioner of Corrective Services [2020] NSWSC 1503. At [42], his Honour recorded the three bases on which the application was advanced: 1. that the District Court Judge had no power to refuse bail to the Plaintiff on 25 September 2020 in the absence of a detention application or variation application being made under the Bail Act 2013; 2. that the District Court Judge denied the Plaintiff procedural fairness in the manner in which the bail issue was determined on 25 September 2020; and 3. that there was a failure by the District Court Judge to comply with various provisions in the Bail Act 2013 as part of the process of refusing bail on 25 September 2020.
Ultimately, his Honour only determined the first basis, holding that there was power (it may be inferred that counsel then appearing for Mr Belan (who was not the counsel appearing on the following Friday, nor in this Court) acquiesced in limiting what was to be argued before the Duty Judge on an urgent final basis, and it may be noted that the Crown accepted that Mr Belan had been denied procedural fairness in relation to the revocation of bail on 25 September 2020). An appeal lies as of right from the dismissal of Mr Belan's summons, but no appeal has been brought. It follows, as Mr Belan accepted, that on the issue of whether there was power to revoke bail, the parties are bound by the decision of the Supreme Court.
It is also convenient to reproduce what Johnson J wrote concerning an application for bail at [31]-[40]: "It was open to the Plaintiff, since 25 September 2020, to make an application for bail to the Supreme Court in accordance with Practice Note SC CL 11 (Bail) with the capacity, under the procedures in the Bail List in this Court, for an expedited hearing of the application to be sought. The Supreme Court had power to grant bail under s.66 Bail Act 2013. An application for bail under s.66 proceeds as a de novo hearing: Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47 at [4]. A bail application is to be dealt with as soon as reasonably practicable: s.71 Bail Act 2013. The restrictions contained in s.22 Bail Act 2013, where an appeal is on foot to the Court of Criminal Appeal, do not apply to an appeal from the Local Court to the District Court: R v Lyons [2018] NSWSC 223 at [13]. However, the fact that the Plaintiff had been convicted of serious fraud offences on 25 September 2020 and that the appeal had moved into the sentencing phase would have been highly relevant to the question of bail: s.18(i1)- Bail Act 2013. The evidence before the Court on 20 October 2020 did not explain why no bail application was made by the Plaintiff since 25 September 2020 with the only application made by him being the Summons filed on 19 October 2020 which sought relief by way of the writ of habeas corpus and, in the alternative, a grant of bail. The Amended Summons contained the same claim for relief, with the only amendment being the addition of the Second Defendant. On 21 October 2020, the affidavit of Mr Ginges affirmed 21 October 2020 was filed in Court. The affidavit of Mr Ginges stated that, on 12 October 2020, he received instructions from the Plaintiff to apply for Supreme Court bail. He stated that a bail application was commenced, a copy of which is annexed to his affidavit. However, it does not appear from JusticeLink that the bail application was actually filed in the Supreme Court. The affidavit of Mr Ginges stated that enquiries were made with the Plaintiff's brother to confirm his consent to the continuing lodgement of a title of a property owned jointly by him and the Plaintiff as part of a bail arrangement. A character acknowledgement was sought from the Plaintiff's partner which was executed on 16 October 2020, a copy of which is Annexure B to the affidavit. The affidavit of Mr Ginges stated that counsel (who was not Mr Wilson) informed him on 15 October 2020 of his opinion concerning the power of Judge King SC to refuse bail on 25 September 2020 and that it was questionable whether the Supreme Court would entertain a bail application when no detention application had been made in the District Court. Counsel had advised Mr Ginges that the appropriate remedy was a writ of habeas corpus. Mr Ginges stated that a second reason for not proceeding with a Supreme Court bail application was the likely delay in having it heard. He stated his view that, although it was possible to seek expedition, for such an application to be successful it must be based upon strong factual grounds such as the need for an inmate to obtain medical or other treatment that was not ordinarily available to persons in custody. At the resumed hearing on 21 October 2020 (T2, T4, 21 October 2020), I expressed my surprise at being informed by Mr Ginges' affidavit of 21 October 2020 that a bail application had in fact been prepared for filing in the Supreme Court after 25 September 2020. Having regard to matters raised by the Court with counsel for the Plaintiff on 19 and 20 October 2020, the clear impression was that no such application had been made. However, the affidavit of Mr Ginges demonstrates that such an application was prepared but not pressed. I do not agree with Mr Ginges' opinion (see [36]-[37] above) that there is a limited category of circumstances in which expedition of a bail application may be sought in this Court. Nor do I consider that the circumstances in which the Plaintiff was refused bail on 25 September 2020 would cause difficulty in the Supreme Court entertaining a bail application by the Plaintiff. I note that counsel for the Second Defendant disputed both propositions advanced by Mr Ginges concerning the bringing of a bail application to this Court and I agree with the Second Defendant's submissions in that respect (T10, 21 October 2020). However, the simple fact is that the Plaintiff did not pursue a Supreme Court bail application between 25 September 2020 and 19 October 2020 by way of an application for expedited hearing or at all."
Johnson J held that habeas corpus was not available. However, in the event that he were wrong about that, his Honour proceeded to reason that the remedy was discretionary, and should be refused in the exercise of discretion because Mr Belan had available to him the right to apply for bail. His Honour said at [138]-[141]: "The present case constituted a powerful example of the availability of an alternative remedy under the Bail Act 2013 designed specifically to permit a court to order the release of a person charged with a criminal offence or offences. The complaint in this case was that the District Court Judge lacked the power to refuse the Plaintiff bail on 25 September 2020. The remedy which was immediately available from that time arose under the Bail Act 2013 and permitted the Plaintiff to come before the Supreme Court promptly (if expedition was sought) with the Court having all the powers under the Bail Act 2013 to determine whether bail ought be allowed or refused. Despite preparing for such an application on and after 12 October 2020, the Plaintiff determined not to bring it but, on 19 October 2020, to approach the Court for urgent relief by way of habeas corpus. I am well satisfied that, if a foundation for the grant of relief by way of habeas corpus had been established, it would have been appropriate to decline to grant such relief in the circumstances of this case. I accept the submission of the Second Defendant that, if this point had been reached in the present proceedings, then powerful discretionary reasons existed for refusing relief by reference to the Plaintiff's delay in seeking relief, the availability of statutory relief under the Bail Act 2013 and the imminence of the next court appearance before the Sydney District Court on 23 October 2020 when the question of bail could arise if the proceedings were not otherwise determined on that day. The proximity of the hearing date in the District Court on 23 October 2020 was an important aspect. All available powers under the Crimes (Appeal and Review) Act 2001, the Crimes (Sentencing Procedure) Act 1999 and the Bail Act 2013 were to be available for exercise by his Honour on that day. This aspect served to fortify the conclusion that, even if there was a viable basis for relief in the nature of habeas corpus, this Court should not further entertain that application."
Returning to the undetermined appeal against sentence pending in the District Court, on 23 October 2020, Mr Belan renewed his disqualification application, his counsel appearing via AVL. Written submissions and an affidavit were apparently supplied to the Crown and the Court either the previous evening or earlier that morning. The application was refused, for brief ex tempore reasons. Those reasons addressed why his Honour had formed the view that a custodial sentence was warranted. They stated that: "By the time I refused bail, I was aware of all of the sentence material that had been provided in the Local Court, and was part of the Crown bundle, being Exhibit 1 on the severity appeal, and I had read all of that material before returning to court at approximately noon to deal with it".
His Honour referred to Mr Belan's history of criminal offending, the absence of remorse, which continued by the fact that he had appealed all of his convictions to the District Court, and a reasonably favourable pre-sentence report, which also stated that he had continued to blame his niece for his convictions. His reasons concluded: "In respect of the application that I recuse myself I decline to do so. The appellant had been sentenced to a sentence of four years with a three year non-parole period. The period of delay between delivering my judgment on conviction and today is approximately four weeks. As conceded in his submissions by Mr Lawrence, the reasonable observer would have made the observation that custody was inevitable. There was nothing advanced by Mr Lawrence on 25 September 2020 which would have caused any need for the appellant to be at liberty in the community rather [than] being where he should have been, that is in custody, as a result of his commission of a serious stream of offences over a significant period of time. Accordingly, as I have indicated, the application is refused."
Early in his submissions on the appeal against sentence, his Honour inquired whether counsel had instructions concerning a Parker warning, and after counsel replied that he did, such a warning was given. Counsel then applied for leave to withdraw the appeal against sentence. There was a short exchange about whether leave was required, counsel maintaining that it was, but his Honour simply said that the matter was withdrawn and dismissed.
The transcript ends abruptly at that point. It is not clear why. It is clear that the parties were reconvened later that day, so that adjustments could be made to the sentence, to reflect the automatic stay of execution under s 63 from 9 September 2019 until 25 September 2020. The primary judge altered the dates for the non-parole period and the term of the sentence in light of the slightly more than a year during which Mr Belan had enjoyed bail, and also altered the indicative sentences, reducing all of them to two years or less (the jurisdictional limit in the Local Court). His Honour also gave some reasons, which were the subject of submissions in this Court.

Overview of issues in this Court

It is accepted that no further appeal is available, and that the effect of s 176 of the District Court Act 1973 (NSW) is to disentitle Mr Belan from seeking judicial review on the basis of error of law on the face of the record. Consistently with what was said in Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [9]-[10] and many other decisions including Lazarus v Independent Commission Against Corruption [2019] NSWCA 100; 367 ALR 274 at [3]-[4] and Dacich v Director of Public Prosecutions (No 2) [2020] NSWCA 298 at [2], Mr Belan must establish jurisdictional error if he is to obtain any relief in this Court's supervisory jurisdiction.
Grounds 1 and 6 of Mr Belan's summons contend that aspects of the proceedings were tainted by apprehended bias. Each ground is similarly worded: "The Court fell into jurisdictional error in dismissing the conviction appeals on account of an apprehension of bias arising from the conduct of the Court during the hearing involving the unlawful remand of the Applicant into custody without application, warning, hearing or reasons." (Ground 1) "The Court fell into jurisdictional error on account of an apprehension of bias arising from the conduct of the Court during the hearing on 25 September 2020 involving the unlawful remand of the Applicant into custody without application, warning, hearing or reasons." (Ground 6)
However, Mr Belan's written and oral submissions extended the challenge to the withdrawal of the appeal against sentence.
Grounds 3 and 4 assert jurisdictional error in relation to the convictions involving the use of credit cards. Ground 7 is consequential, and alleges jurisdictional error "on account of having given a Parker Warning and dismissed the sentence appeals in circumstances where the predicate orders in respect of the conviction appeals were made outside of jurisdiction", and was not developed separately. Grounds 2 and 5 were formally withdrawn.
Mr Belan's summons also seeks a grant of bail. Section 61 of the Bail Act provides that "[a] court may hear a bail application for an offence if proceedings for the offence are pending in the court." This Court has jurisdiction to hear and determine Mr Belan's application, accepting (as I do) that the claims that the dismissal of Mr Belan's appeal to the District Court are affected by jurisdictional error mean that his summons amounts to "proceedings for an offence". Proceedings in this Court's supervisory jurisdiction are not one of the five classes of proceedings specifically listed in the definition in s 5(1) of the Bail Act of "proceedings for an offence", but the list is not exhaustive, the present proceedings readily fall within the ordinary meaning of "proceedings for an offence" and there is no reason to impute to the Legislature an intention that this Court, while it could quash a conviction or sentence imposed on appeal by the District Court, lacked power to hear and determine an ancillary application for bail. That accords with what was said in Liristis v Director of Public Prosecutions (NSW) [2015] NSWCA 261 at [7]-[11].
However, bail applications are to be dealt with as soon as reasonably practicable: Bail Act, s 71. That has not occurred in the present case. The summons was filed on 24 December 2020, and no steps were taken by Mr Belan to have his application dealt with in advance of the hearing of the summons. Bearing in mind that Mr Belan actually prepared an application for bail last October, and chose not to advance it, something which was criticised in separate proceedings which were brought by him and determined with the utmost expedition last year by the Supreme Court constituted by Johnson J, it is difficult to reach any other conclusion save that the application for bail was treated as contingent upon setting aside the conviction or sentence imposed by the District Court. When the summons was heard, the application for bail was addressed separately and at the conclusion of the hearing. These reasons follow the same course.

Apprehended bias

It is appropriate to deal with grounds 1 and 6 first. If these grounds are made out, Mr Belan's appeal will not have been determined in accordance with law: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2]-[3], [117] and [172]; Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [53]; Windsor v Health Care Complaints Commission [2020] NSWCA 110 at [51].
No complaint of apprehended bias was made as to the conduct of the hearing of the appeal against conviction. Attention was instead focussed upon what occurred following the dismissal of that appeal. The 12 pages of transcript on 25 September 2020 following the delivery of oral reasons included criticisms of counsel for Mr Belan seeking an adjournment, and further criticism of counsel who had tendered, after a short adjournment was granted, a psychological report which had been dated 24 November 2019. Criticism was also extended to the Crown, but was more muted, because the Crown advised that it was willing and able to proceed, although the Court's intention to do so had not been understood. There had been an email to the parties from the judge's Associate two days previously, advising of the time and location of the hearing, and stating: "Please ensure you bring trolleys with you on Friday morning to collect the many folders of exhibits. The registry is particularly keen that nothing is left for them to deal with."
His Honour said: "I don't know why either of you had such a casual attitude to the completion of this matter, which has now been hanging around since whenever he was charged and certainly since 2018, when the hearing completed in front of the Magistrate."
Counsel then advised that he had recently been briefed with a brain scan of the applicant which referred to a perfusion through both cerebral hemispheres. Counsel said "[i]t says that that perfusion is of uncertain significance and that the scan is an essentially unremarkable study. Your Honour, I'm not exactly sure what that means". That led to the following exchange: "HIS HONOUR: So you now want an adjournment on the basis that you want to obtain further evidence in relation to the perfusion of his brain? LAWRENCE: Your Honour says that in a sceptical, derisory tone. I'm just enquiring why, your Honour? HIS HONOUR: Because you have had since 2018 to take further action in relation to this matter and you have done nothing. Until now you get a report of 17 September and you do nothing again in relation to it. LAWRENCE: I received it today, your Honour. HIS HONOUR: Yes, you received it today, Mr Duc obviously received it before today and it's dated 17 September."
Shortly thereafter, the subject returned to the November 2019 psychological report which had only been provided to the Crown that morning. "LAWRENCE: Your Honour, that was the shared understanding of the parties of course. The essential point in my submission - and your Honour I should say this, in circumstances where at five to 12 I served a copy of the report on the Crown which is difficult to imagine how that could have been read in that time. HIS HONOUR: Sorry, that's the one of 24 November 2019? Why didn't you give it to the Crown in advance? Why did you have to give it to him at five to 12 today? LAWRENCE: Because, your Honour, we were in for judgment on the conviction appeal - HIS HONOUR: Yes, but why not have given it to him at any time since 24 November 2019. Did you just want to take the Crown by surprise at the last minute, Mr Lawrence, was that it? LAWRENCE: No, your Honour, and I don't - HIS HONOUR: Didn't have time to think about its content? LAWRENCE: Your Honour, in circumstances where the Crown too understood that we weren't arguing the sentence appeal today, I don't think, your Honour, the Crown would feel particularly taken by surprise. So your Honour, my submission is that there would be a real procedural unfairness in your Honour not granting an adjournment in circumstances where your Honour has been told in terms that could not be clearer that the appellant is not ready and your Honour, in circumstances - HIS HONOUR: Well the appellant is not ready because you haven't made the appropriate preparations for him to be ready. LAWRENCE: Your Honour, if your Honour wishes to characterise it that way I can certainly assume that burden your Honour and be subject to any criticism. HIS HONOUR: Well I'm prepared to give you an adjournment, Mr Lawrence. How long do you need?"
There were exchanges as to dates, which need not be summarised, culminating in the sentence appeal being listed on 23 October 2020.
The transcript concluded as follows: "HIS HONOUR: So I will list it for 23 October. LAWRENCE: I would ask that bail continue, your Honour. HIS HONOUR: At 10am. LAWRENCE: I'd ask that bail - HIS HONOUR: And bail is refused. LAWRENCE: Your Honour, I'd ask that bail continue so that the medical matters - HIS HONOUR: Bail is refused. I have heard the appeal. I have found that he committed the offences. He received a prison sentence from the magistrate and it is now appropriate for him to continue to serve that sentence. LAWRENCE: Your Honour, Mr Belan has not been heard on the question of bail. And, your Honour, I note for the record that the Corrective Services officers entered this court about 20 minutes ago. We have not been heard on the question of bail. That amounts to a gross denial of procedural fairness. I ask that your Honour disqualify yourself. HIS HONOUR: I don't propose to disqualify myself, Mr Lawrence, and bail is refused as I have indicated. LAWRENCE: May it please the court."
On 23 October 2020, the application that his Honour disqualify himself was renewed, and rejected. The short exchange which ensued, leading to the giving of a Parker warning and the withdrawal of the sentence appeal, have been mentioned above.
The Court appears to have adjourned and reconvened. His Honour commenced by giving some reasons for the Parker warning which he had given. His Honour said: "First of all in determining that it was appropriate to give your client a Parker warning I took into account all the material that was before me. In addition I was not unaware of the issue of parity in relation to the two co-offenders: his niece and the IT supplier. Except that the only information before me was as to the actual sentence that was imposed and the amount that their offending involved. I did not have the reasons expressed by either of the sentencing Magistrates or the facts that they pleaded guilty to and I do not know whether or not there was any discount for assistance. However, I took the view that your client had over a significant period of time, that is years, treated the NUW as his private account or piggy bank and had - LAWRENCE: There's no parity issue raised your Honour if that assists. HIS HONOUR - fundamentally breached the trust that was placed in him as the most senior officer of the NUW. To borrow a phrase used by now retired Frearson DCJ in relation to when he sentenced Michael Williamson from the Health Services Union I think it was, to a term of imprisonment of seven and a half years with a - I'm not too sure on the non-parole period but I think it was in the range of five years or a bit less, however the phrase or the term that I would adopt as appropriate is that your client was in essence a parasitic plunderer on the Union funds. The Unions have been of great value to Australian society over time. They have ensured that workers got fairer pay, that health and safety conditions were improved. They have had considerable influence politically in relation to general social matters that have in my view been of great benefit to the Australian community and it is appalling when someone such as - LAWRENCE: Excuse me your Honour I'm sorry to interrupt but the appeal has been - HIS HONOUR: Please don't interrupt me thank you. LAWRENCE: Well I would seek to be heard your Honour if I could be - HIS HONOUR: No Mr Lawrence you can be heard later. Don't interrupt. LAWRENCE: Thank you. HIS HONOUR. And your client fundamentally breached the trust that was placed in him by members of the Union whose subscription fees were used for his personal benefit."
A further three pages of transcript addressed adjustments to the dates of the sentence reflecting the period of time during which its execution was stayed while Mr Belan was on bail, and an issue which his Honour noted had not been raised by either side, namely, the fact that the indicative sentences stated by the Magistrate exceeded the jurisdictional limit of the Local Court. His Honour re-expressed the indicative sentences with periods in each case of less than two years, saying that he had "in fact [gone] through the process of assessing what the indicative term should be in relation to each of the offences" in the course of determining that a Parker warning was appropriate.

Mr Belan's submissions

Mr Belan submitted that the tone of the exchanges on 25 September and 23 October 2020 was extremely hostile, and "sceptical" and "derisory", relying on the failure of the primary judge to dispute what counsel had recorded, namely, that "Your Honour says that in a sceptical, derisory tone". Mr Belan also relied on the court-initiated revocation of bail, the failure to hear Mr Lawrence against the revocation of bail, and the fact that officers from Corrective Services had been summoned even before the sentence appeal had been heard and even before the application for an adjournment had been made and granted.
In relation to the hearing on 23 October 2020, Mr Belan pointed to the irregularity in the appeal being "withdrawn and dismissed" (which are mutually inconsistent), the refusal to acknowledge that leave was required pursuant to s 67 of the Crimes (Appeal and Review) Act, the giving of reasons when the hearing resumed, and in particular the description of Mr Belan as a "parasitic plunderer" of union funds.
All of these considerations would, it was submitted, suffice to give rise to the conclusion that a reasonable observer might conclude that the primary judge might not bring an impartial mind to the appeals.

Resolution of grounds 1 and 6

There was no dispute as to the legal test to be applied. As was said in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6], putting to one side qualifications relating to waiver and necessity, a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That reflects the requirement that justice be done, and be seen to be done.
Significantly for present purposes, the joint judgment explained at [8]: "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed."
It may be acknowledged that the exchanges between Mr Lawrence and the primary judge became more heated than is desirable. It should be observed, in fairness to all concerned, that the hearing on 23 October 2020 was stood down until 1.30pm, that his Honour was simultaneously running a jury trial, and that he had another matter before him. It may also be inferred that the difficulties and stresses associated with hearings during the COVID-19 pandemic did not assist.
But these grounds must fail unless Mr Belan establishes a logical connection between the matters complained of and the decision which is impugned.
First, there was no complaint of any aspect of the hearing of the appeal against conviction, or the reasons given by his Honour. Mr Belan's criticisms are confined to matters subsequent to the dismissal of his appeal. "LEEMING JA: ... [T]his is not a criticism, but just to make sure I understand, events that happened after the orders of which you complain, you say we can take them into account in order to confirm the underlying animus that you say infects the actual exercises ... of power? HIGGINS: Yes, I note the Crown makes a submission about the lack of authority offered by the applicant about relying upon conduct ex post facto, and we don't provide an authority to that."
There is authority directed to this point, although it need not be considered in any detail, because it was common ground when the appeal was heard that, in an appropriate case, it might be possible to reason backwards from what had occurred after a hearing at which an order was made in order to conclude that a ground of apprehended bias was made out, which accords with what was said in Studholme v Rawson (2020) 102 NSWLR 490; [2020] NSWCA 76 at [53]-[56]. But that is not this case. The appeal against conviction proceeded in an orthodox fashion. The course of that hearing, after his Honour had identified the material relied upon on behalf of Mr Belan, was accurately summarised by the Crown: "There's then an exchange between his Honour and Mr Lawrence and his Honour and the Crown over the remainder of the hearing. At affidavit p 43 he does not deliver judgment immediately. He indicates that he is going to reserve, that he is going to deliver judgment as quickly as he can but that the matter is of such volume that that might take some time. He then says at the bottom of p 43 that he's going to simply adjourn the matter to a date to be fixed in consultation with the parties and continues Mr Belan's current bail. He then makes clear that the applicant will not be required to appear until such time as has been agreed on a date. There's certainly no prejudgment of any kind at that point. His Honour is considering carefully all of the issues, appropriately continues bail, has not prejudged anything and is certainly not indicating any degree of animus."
Nothing that occurred subsequently, after the appeal against conviction was dismissed, is capable of establishing a logical connection with any feared deviation from determining the appeal on its merits. Mr Belan's submission, insofar as it challenges the dismissal of the appeal against conviction, suffers from the same impermissible reasoning backwards as was criticised in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [73].
Secondly, I agree with the primary judge that on any view of the matter, a custodial sentence was inevitable for the offending for which Mr Belan had been found guilty. Indeed, when the application for judicial review was heard, Mr Belan very properly conceded as much: "McCALLUM JA: Mr Higgins, barring some extraordinary new subjective case which wasn't foreshadowed, wouldn't you have to accept that the fact of imprisonment, that that threshold was met? HIGGINS: Look, I'll clearly-- McCALLUM JA: The length might've arguably been the subject of some argument, but it was a case that demanded a term of full time imprisonment, didn't it, on the material? HIGGINS: It demanded a term of imprisonment, but recognising he'd already served a term of imprisonment and he'd been at liberty …"
But I would go further than the concession. Not only was this a case where a full-time custodial sentence was inevitable, but further, absent any extraordinary subjective case (of which there was no suggestion in the evidence), a full-time custodial sentence in excess of the 18 months already served was inevitable. There are 59 counts. There was no remorse. The amount of union funds defrauded is substantial. There is nothing to suggest that any had been repaid. The timeframe is substantial. There was a significant degree of planning. Mr Belan's subjective case has some features which attract some reduction of sentence (his childhood, his psychiatric condition, the support of some of his family and some colleagues) but others which are unfavourable (his criminal record, and continuing to blame his niece).
That is not to excuse the summary revocation of bail. Even if a further substantial period of imprisonment were inevitable, Mr Belan had the right to be heard, including on whether his imprisonment should resume immediately or after a short further delay. The reason for making that point is to explain how the revocation of bail cannot establish an apprehension of bias in respect of the dismissal of the appeal against conviction. One was a consequence of the other; the consequence cannot be used to sustain an argument that the dismissal of the appeal was attended by apprehended bias.
Thirdly, I turn to the sentence hearing. This took place four weeks later, the primary judge having acceded to Mr Belan's application for an adjournment. It was open to the primary judge to form the view, having considered the material to be tendered at the sentencing hearing, that a Parker warning was appropriate. Indeed, I did not understand that the contrary was submitted by Mr Belan. Plainly that possibility was had been contemplated by Mr Belan and his legal team, and express instructions were obtained in advance of the hearing.
Fourthly, the primary judge did not dismiss the appeal against sentence. Had that occurred, it would have been necessary, in determining whether apprehended bias had been made out, to bear in mind that the primary judge had granted the adjournment sought by Mr Belan, which tends against a conclusion that his Honour had pre-judged the appeal against sentence. But that issue does not arise, because the appeal was withdrawn. That was Mr Belan's forensic choice. Let it be assumed, favourably to Mr Belan, that his withdrawal of the appeal was a consequence of a conclusion that the primary judge would not bring an impartial mind to it. Even so, how can complaint now be made? Mr Belan could have gone to the Supreme Court and sought relief including orders preventing the primary judge from hearing and determining the appeal against sentence. Indeed, Mr Belan did in fact seek urgent relief from the Supreme Court, although it was of a different nature. In principle it might have been possible for Mr Belan to have renewed his recusal application on 23 October 2020, and then after it was rejected to have sought a further adjournment of the sentence hearing so as to invoke this Court's supervisory jurisdiction to vindicate his claim based on an apprehension of bias.
But instead Mr Belan withdrew his appeal. The primary judge acceded to that application. I do not see how that can be impugned in this Court's supervisory jurisdiction. The decision to apply for leave to withdraw the appeal was the act of Mr Belan (by his counsel), carrying with it the consequence that rather than the District Court having to deal with a hearing on the merits of an appeal against sentence, instead the only question was whether the appeal should be permitted to be withdrawn (with consequential administrative alterations to the sentence reflecting the automatic stay of execution after there had been a grant of bail).
In oral submissions in this Court, responding to the Crown's submission in writing that he had failed sufficiently to identify the judicial acts sought to be quashed, Mr Belan sought to rely on a series of matters which occurred on 23 October 2020: "It's the applicant's case that it relies upon Parker warning, the decision not to grant leave and then the decision to withdraw the appeal, so that the applicant says there are a series of decisions that are being made which are reviewable and that is what should occur.
This submission makes it necessary to examine more closely what occurred at the conclusion of the hearing. 1. The giving of the Parker warning was not of itself an order or decision which was susceptible to judicial review. The Parker warning was necessary lest there be a denial of procedural fairness in the event that upon resentencing, a longer sentence was imposed. But the warning did not itself carry with it a legal effect or consequence, save for expanding the possible outcomes of Mr Belan's appeal against sentence which might be reached following a hearing which was procedurally fair. In Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 itself, Kirby P said: "Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer's conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view." But drawing such considerations of importance to the parties' attention, in order for the court to be procedurally fair, is not to perform a judicial act capable of attracting certiorari. 1. Mr Belan is correct to submit that there should have been a grant of leave: Crimes (Appeal and Review) Act, s 67(1). However, the order which was made is to be understood as carrying with it the requisite grant of leave to withdraw the appeal, because it is plain that his Honour considered that that was the only appropriate course. Contrary to Mr Belan's submissions, there was no order refusing leave. 2. There is a further difficulty, raised in this Court but not by the parties, insofar as the Local Court's aggregate sentence turned on 60 convictions, and two were quashed (one by consent, and another because the primary judge concluded that the elements had not been proved). But the withdrawal of the appeal against sentence left the sentence in place, in substance acknowledging that the sentence remained appropriate for the remaining 58 charges. 3. It may seem unusual for an appellate court to make orders altering the orders at first instance when an appeal is withdrawn. However, that is made necessary by the regime for an automatic stay of execution, in light of which there is express legislative provision. Section 67(2) of the Crimes (Appeal and Review) Act provides: "In granting leave for an appeal or application for leave to appeal to be withdrawn, the appeal court may make such orders as are necessary to place the appellant as nearly as practicable in the same position as if the appeal or application had not been made." 1. The orders altering the dates of Mr Belan's term of imprisonment and non-parole period, made shortly after the appeal was withdrawn, and before any orders had been entered, are authorised by that power. Those orders are essentially administrative, and are consequential upon the withdrawal of the appeal against sentence. 2. Finally, it may be noted for completeness that there was on one view an irregularity insofar as the appeal against sentence was withdrawn, and only thereafter were corrections made to the dates and the indicative sentences. However, it is difficult to see, in light of s 53A(5) of the Crimes (Sentencing Procedure) Act, how the Local Court's error in relation to the indicative sentences had any consequence, or how its purported correction by the District Court matters. Neither party addressed this in submissions.
Thus, as the Crown submitted, the only operative order made by the primary judge was the withdrawal of the appeal against sentence.
True it is that the primary judge thereafter expressed some strongly held views about Mr Belan, by way of explanation of the Parker warning his Honour had given. He said that he had "rarely seen an appeal so lacking in merit", and, after a short adjournment, that Mr Belan was a "parasitic plunderer" of union funds. This is strong language, but the first question is whether the language was correct.
I am unpersuaded that Mr Belan's appeal against sentence had any merit, and no serious attempt was made by Mr Belan in this Court to establish that the appeal against sentence was other than hopeless. The judge formed the same view, which informed his decision to give a Parker warning.
It is regrettable that his Honour described Mr Belan as a parasitic plunderer of union funds. But, relevantly for present purposes, even if his Honour were wrong to have done so, it has not been established that any order more favourable to Mr Belan could or should have been made in relation to the appeal against sentence other than acceding to the application to withdraw the appeal.
While it may be acknowledged that there were some procedural irregularities in the resolution of Mr Belan's proceedings in a very busy court, Mr Belan has not established that there has been any practical injustice suffered by him; cf Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37]. This reflects a combination of matters, namely, (a) the ability to renew the application for bail, including in the Supreme Court, which Mr Belan chose not to avail himself of, (b) the absence of any logical connection between any of the events complained of (all of which post-dated the dismissal of the conviction appeal) and the determination of that appeal, (c) the inevitability of a substantial custodial sentence and (d) the forensic choice to withdraw the appeal against sentence.
These grounds are not made out.

Jurisdictional error concerning convictions

Ground 3 of Mr Belan's summons correctly proceeds on the basis that he needs to establish jurisdictional error. That ground was that "[i]n circumstances where the prosecution case as articulated on request by the prosecutor during the appeal was that the Applicant had deceived the National Union of Workers only at the point in time of the particular credit card transactions and where the Court was ruling against the Applicant on a different basis without warning" the Court "fell into jurisdictional error by constructive failing to exercise jurisdiction, including by denying procedural fairness" (original emphasis).
Ground 4 was: "The Court further fell into jurisdictional error by constructively failing to exercise jurisdiction, including by unreasonable fact finding and/or a misdirection of law as to the meaning of deception, by making the findings at [117] to [118] and [83] in circumstances where the conduct involved in undertaking the transactions was not capable of amounting to a deception of the National Union of Workers at that point."
Although both grounds were framed inclusively, no other bases of jurisdictional error were advanced under these grounds.
Further, although it may be accepted for present purposes (no argument to the contrary having been advanced), that unreasonable fact finding is capable of amounting to jurisdictional error, mere error of law on the part of a court is not jurisdictional error. That is established by Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58. "[T]he ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine": Craig at 179. The majority of Mr Belan's written and oral submissions simply contended that there was error of law in the approach taken by the primary judge to deception. There is no utility in summarising or considering those submissions, which fall short of establishing jurisdictional error.
The paragraphs to which the grounds referred were as follows: "[83] Each time the Appellant intentionally used the NUW credit cards for personal non-union purposes, he was by that act alone deliberately dishonestly deceiving the Union in the circumstances that he had so structured the NUW processes that they simply thereafter provided an unchecked rubber stamp. The deception was from the outset of the transaction and continued until the credit card account was met by payment from the NUW in accordance with the processes he had established. The appellant, using the credit card for a non-union purpose, intended to obtain for himself a financial advantage to the disadvantage of the NUW. It is not necessary to point to a specific individual in the Union that was deceived; it is the corporate entity that was deceived. ... [117] The use by the appellant of an NUW credit card dishonestly for non-union purposes was the commencement of a process of deception which concluded with the eventual payment of the statement issued by the bank for the use of the credit card by Ms O'Brien, the appellant or any staff member of the NUW who from time to time may have been directed to deal with such payments. It was the NUW corporation that had to be deceived not the individual vendor who supplied merchandise on a credit card sale to the appellant. [118] The fact that some of the charges are specified as occurring at the time and place of purchase (i.e. Berkshire Park, Penrith, Cronulla) and some at the time of payment of the credit card payment by the NUW at Granville is not material or a fault in the prosecution case as the deception was ongoing."
The large majority of the evidence before the Local Court and the District Court was not tendered in support of Mr Belan's summons. I did not understand that it descended into the contractual details of the contract between shopkeeper and bank pursuant to which a customer such as Mr Belan might effect a transaction using a credit card. Nor did it descend to the contract between (I presume) some officer of the union (for the union was not, for most purposes, a legal person) and a bank whereby the credit cards in Mr Belan's possession were issued, following the use of which a liability was recorded on the account. Indeed, an exchange in the transcript of the hearing of the appeal suggests that it was not entirely clear in whose names the credit cards were issued. The simple point was that if there was any deception, it was of the union or of some officers or employees of the union, and that occurred after the transaction was effected, which was contrary to how the Crown case had been advanced.
"The transaction" is, of course, rather more complicated than a bilateral transaction between Mr Belan and a shopkeeper. The involvement of a credit card given by the union to Mr Belan introduces at least one and probably more than one financial institution as well as the union.
The reasoning at [83], aside from the inapt reference to the union as a "corporate entity", is entirely correct on the evidence. The issue that arises under ground 3 is whether the Crown tied itself to a claim that the only deception was that which occurred at the point of transaction. That is not borne out by the record.
Paragraphs 50-52 of the Crown's written submissions in the District Court were as follows: "50. The appellant has used union funds for his personal benefit (in the absence of any approval), the appellant has been dishonest and deceived the NUW in relation to these transactions. The appellant in these circumstances has received a financial advantage, and, or the NUW has suffered a financial disadvantage. 51. The nature, volume and the sums involved are an indication that the appellant (with some regularity), treated union funds and accounts as his own, for his personal use and convenience. The degree of planning in some instances with the creation of false invoices is a further indicator of the appellant's attitude to the funds of the Union. 52. The appellant's intent to deceive the NUW is at the time of each purchase or when the expenditure is incurred. The Crown argues that the appellant's intent may be viewed by looking at his conduct in its entirety, and as such the volume and quantum are indicative of the appellant's intent to use the NUW funds as his own and deceive the NUW of the true nature of his expenditure. The appellant's intent can be gleaned from the repeated use of NUW funds and the continued deception in failing to disclose to his employer, or relevant committee (BCOM) of his personal expenditure not authorised by the NUW."
During oral submissions in the District Court, there was the following exchange, on which Mr Belan relied: "LAWRENCE: ... My learned friend - and I'll develop this submission as I take your Honour through each of the sequences and what submissions are made - my friend does attempt to shift his case but he only does it in respect of certain of the sequences. In respect to the large number of the sequences, the prosecution case remains a deception at the point of transaction. Our submission is that a case based on deception at the point in time of transaction must fail, and your Honour, to the extent that an attempt is made to shift the case in respect of certain of the sequences to rely upon a misleading of the BCOM, your Honour would not permit a shifting of the case. EVANS: Can I interrupt, your Honour, because it might assist my friend and your Honour. I'm not attempting to shift the case. If I draw my friend's attention to para 52 of the Crown submissions, I'm not saying the evidence of the BCOM is irrelevant, but I still rely on para 52. The deception that the Crown relies on is at the time of each purchase when the expenditure is incurred. I'm not suggesting that the Crown relies on the deception of the BCOM as the timing of the deception by the appellant, I do however, say that the BCOM has relevance, likewise(?) So, if it assists my friend, it's quite common practice for a factual matrix to refer to other events when trying to infer conduct at an earlier or later time. That's what I'm intending to do by the BCOM. HIS HONOUR: I have to say, Mr Crown, I had understood that to be your case. EVANS: If it assists my friend in articulating his argument, but perhaps I'm trying to address it on a sequence-by-sequence basis as I was asked to specifically by Judge Handley. I don't know whether I've been loose with my language or perhaps somehow increased the role of the BCOM. HIS HONOUR: Or you got bored with repeating the same thing. EVANS: I think that's a factor that I was trying to say different things, it's also the fact that there were two people working on these submissions, so at times we used slightly different language. I don't resolve [scil resile] from para 52 if that assists my friend, but I do rely, this is if my friend is still addressing the evidence of what happened in the BCOM, my submission is it is relevant in addressing - HIS HONOUR: It's relevant in the sense that you say the deception was when the credit card, for instance, was used to pay for the holidays, or groceries at Lake Conjola - EVANS: Indeed, and subsequent conduct. HIS HONOUR: - and that the scheme in place, by way of which was organised by the appellant, was that the financial committee had been terminated. And Ms O'Brien was in charge of putting together the figures for the BCOM which then became consolidated for any particular expenditure as transport, taxis, whatever it might be, or any other general expense was then put before the BCOM in the absence of any breakdown of how the figures were derived. EVANS: Exactly. HIS HONOUR: And then simply approved by them in dereliction of their duty to do the right thing by the members of the union and that of course ail of the payments were made by way of cheques pre-signed by Mr Anderson, I think it was, when he would sign an entire book of cheques in advance of them being used so that all that Mr Belan had to do was to, as the co-signatory was to, sign the cheque to ensure the payment. EVANS: Yes. If that assists my friend and your Honour, I've been reluctant to- HIS HONOUR: Have I misunderstood? EVANS: No, your Honour. I was reluctant to interrupt but I didn't want my friend and your Honour to go down a path of they're not saying three hours - HIS HONOUR: All right. Thank you. EVANS: What have we been talking about. HIS HONOUR: Sorry, Mr Lawrence you have been interrupted but it was no doubt of help to us all. LAWRENCE: Thank you, your Honour. No. No. I'm very grateful to my friend your Honour and I had noticed that there was different language in respect of the sequences and that explains it in terms of two minds having focussed on the question. My submission, and I think your Honour, it's very clear from our written submissions, is that when a person uses a credit card in their name that there is no operative deception from the shopkeeper, and no operative deception when EFT transactions are undertaken as in this case in the bulk of them by Ms O'Brien, the bookkeeper of the union, the person authorised to use … the accounts. HIS HONOUR: Sorry. Could I just ask this, Mr Lawrence, when you say 'when a person uses a credit card in their name there is no operative deception on the shopkeeper' but we're not talking here about credit cards in your client's name but credit cards I presume in the union's name with him as an available signatory to it. His name probably is shown on the card. LAWRENCE: They were names on my understanding or credit card were assigned to certain individuals in the union in their name and your Honour they were then able to use those cards. As a question that relates to the union they were to use those credit cards for union expenses. HIS HONOUR: The credit cards themselves were in respect of the union account, weren't they? LAWRENCE: Yes. Certainly, your Honour. HIS HONOUR: However it may have looked presumably it had some reference to the union on the card and then the person authorised by that card's name in addition. LAWRENCE: Your Honour, I couldn't venture an opinion but I will look at the evidence on that but I couldn't venture an opinion as to whether NUW was on the card or not. HIS HONOUR: All right. The account number was the NUW account. LAWRENCE: Yes. Indeed. HIS HONOUR: Not Mr Belan's personal account. LAWRENCE: No. Indeed, your Honour. Indeed. Your Honour, the submission is that a shopkeeper is not deceived in any relevant sense because a shopkeeper is not concerned about the contractual or employment relationship between an individual using a card and their particular employer. HIS HONOUR: I don't think the Crown case is that it be calling the shopkeeper that the shopkeeper was the person deceived. The Crown case is that the person deceived or party deceived was in effect the union because of the use by Mr Belan of the credit card which was only permitted to be used for union activities or genuine union activities. His use of that credit card to buy cigarettes, toys and other things constituted a misrepresentation of the credit card being used for corporate purposes when in fact it was being used for personal purposes. I think that's what the Crown is relying on. Am I right? EVANS: Correct, your Honour. I'm not relying on any deception of anyone other than the entity being his employer, the union, NUW." (emphasis added)
It should be mentioned that both counsel appeared via AVL. There are passages in the transcript which are obviously imperfect. There are passages early in the exchange, which Mr Belan emphasised, which support a narrow approach taken by the Crown. But the transcript must be read as a whole. It is quite clear, not least from the concluding passages emphasised above, that the Crown case was not confined to one where the only deception was that which took place at the moment of the purchase by Mr Belan from a shopkeeper.
The finding by the primary judge at [83] reflected the way the case was put. There was nothing procedurally unfair about what occurred.
Insofar as ground 4 contended that the primary judge had made unreasonable factual findings, this was not developed in Mr Belan's written or oral submissions. Further submissions were made concerning the legal test involved in the offence created by s 192E(2), but these submissions went no higher than there having been an error of law. That is outside the scope of this Court's supervisory jurisdiction.
These grounds are not made out.

Orders

For those reasons, none of the grounds which were pressed is made out. In the absence of any jurisdictional error, there is no basis to grant any relief in relation to the orders of the District Court.
It also follows that there is no basis for a grant of bail.
The summons filed 24 December 2020 should be dismissed.
The proceedings are civil proceedings, to which UCPR r 42.1 applies, although they seek to impugn the exercise of the appellate jurisdiction of the District Court. In other instances of unsuccessful attempts to invoke this Court's supervisory jurisdiction, costs have been ordered to follow the event (for example, Tay v Director of Public Prosecutions (NSW) [2014] NSWCA 267; Scott v Director of Public Prosecutions (NSW) [2015] NSWCA 60; Liristis v Director of Public Prosecutions (NSW) [2016] NSWCA 66; Brown v Commonwealth Director of Public Prosecutions [2016] NSWCA 333; Bagshaw v Director of Public Prosecutions (NSW) [2016] NSWCA 340; Bagshaw v Director of Public Prosecutions (NSW) [2018] NSWCA 14; Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253; Templeton (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 335; Vok v Director of Public Prosecutions (NSW) [2019] NSWCA 242; Hay v Director of Public Prosecutions (NSW) [2020] NSWCA 75; Nguyen v Director of Public Prosecutions (NSW) [2020] NSWCA 173). Indeed, the only cases where costs have not been ordered that my researches have disclosed have been those where the successful party has not sought costs. That is not this case.
Mr Belan sought costs in the event that he obtained relief in this Court. The first respondent sought costs in the event that the summons were dismissed.
I propose that the summons filed 24 December 2020 be dismissed, with costs. A separate application for bail (2021/109835), filed shortly before the hearing on 20 April 2021, should also be dismissed.
McCALLUM JA: I agree with Leeming JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 May 2021

(2020) 102 NSWLR 490

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

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Legislation Cited (6)

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