Citation: Balsiene v New South Wales Land and Housing Corporation; Balsyte v New South Wales Land and Housing Corporation [2025] NSWCCA 70
Court: Court of Criminal Appeal
Date: 27 May 2025
Judge(s): Harrison CJ at CL
Background
The appellants were former residents of a social housing building in Sydney who were convicted in the Local Court of offences relating to sub-letting their Housing Commission apartment for profit. They appealed their conviction to the District Court, as is the standard path for Local Court criminal appeals.
In the District Court, the appellants sought an adjournment and applied for leave to tender fresh evidence under s 18 of the Crimes (Appeal and Review) Act 2001. A District Court Judge refused both applications in December 2024, and the appeal against conviction remained on foot but had not yet been determined.
The appellants then sought to appeal those interlocutory refusals to the Court of Criminal Appeal, applying for leave under s 5F(3)(a) of the Criminal Appeal Act 1912. The Registrar referred the matter to a single judge to determine whether the appeal should be dismissed as incompetent, that is, whether the Court had jurisdiction to hear it at all.
Legal Issues
- Whether the Court of Criminal Appeal has jurisdiction under s 5F of the Criminal Appeal Act 1912 to hear an appeal against an interlocutory decision made in the District Court during the course of a Local Court conviction appeal.
- Whether a District Court appeal from a Local Court conviction constitutes "proceedings for the prosecution of offenders on indictment" within the meaning of s 5F(1)(a) of the Criminal Appeal Act.
- Whether s 5F must be read down or made subject to s 176 of the District Court Act 1973, which prohibits the removal of District Court appellate adjudications into the Supreme Court.
Decision
The appellants argued that s 5F(1)(a) applied because the broad statutory definition of "indictment" in s 2 of the Criminal Appeal Act encompasses any information filed for the prosecution of offenders, including Local Court informations. They relied on observations from Sasterawan v Morris [2010] NSWCCA 91, where Basten JA had assumed (without deciding) that District Court appeals from the Local Court could fall within that definition.
Harrison CJ at CL acknowledged that the definition of "indictment" in the Criminal Appeal Act blurs the traditional distinction between indictable trials and summary proceedings, a distinction emphasised by Dixon J in Munday v Gill (1930) 44 CLR 38. However, his Honour identified a separate and decisive obstacle: s 176 of the District Court Act 1973 expressly prohibits any adjudication on appeal by the District Court from being removed into the Supreme Court.
His Honour concluded that where two statutes appear to conflict, they should be reconciled by reading one as subject to the other. Section 176 of the District Court Act, introduced after s 5F of the Criminal Appeal Act, plainly constrains the avenue of review to instances of jurisdictional error pursued under s 69 of the Supreme Court Act 1970. Accordingly, s 5F must be read down or made subject to s 176, with the result that the Court of Criminal Appeal has no jurisdiction to entertain the appeal.
Orders Made
No orders were made in this decision.
Key Takeaways
- Section 176 of the District Court Act 1973 operates as a jurisdictional bar that prevents the Court of Criminal Appeal from entertaining interlocutory appeals arising from District Court proceedings that are themselves appeals from Local Court convictions.
- Where s 5F of the Criminal Appeal Act 1912 and s 176 of the District Court Act 1973 are in conflict, s 5F must be read down or made subject to s 176, applying the principle that a later statute may impliedly qualify an earlier one.
- The only avenue for challenging District Court appellate decisions in criminal matters is a claim of jurisdictional error under s 69 of the Supreme Court Act 1970, not an appeal to the Court of Criminal Appeal under s 5F.
- The broad statutory definition of "indictment" in s 2(1) of the Criminal Appeal Act, which includes any information filed for the prosecution of offenders, was not sufficient in itself to ground the Court's jurisdiction once s 176 was brought into account.
- In dismissing the appeal as incompetent, the Court confirmed the narrow scope of Supreme Court review of District Court criminal appeal decisions, consistent with prior Court of Appeal authority including Truong v DPP (NSW) [2023] NSWCA 64.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), ss 2, 5C, 5F, 22
- District Court Act 1973 (NSW), s 176
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18
- Supreme Court Act 1970 (NSW), s 69
- Criminal Procedure Act 1986 (NSW), Ch 2 Pts 1-2, Ch 3 Pt 3 Div 2
Cases:
- Sasterawan v Morris [2010] NSWCCA 91; (2010) 201 A Crim R 302
- Truong v Director of Public Prosecutions (NSW) [2023] NSWCA 64
- Munday v Gill (1930) 44 CLR 38; [1930] HCA 20
- Saraswati v R (1991) 172 CLR 1; [1991] HCA 21
- Butler v Attorney-General (Vic) (1961) 106 CLR 268; [1961] HCA 32
- R v Steffan (1993) 30 NSWLR 633
- Cucu v District Court of NSW (1994) 73 A Crim R 240
- R v Gilfillan [2003] NSWCCA 102; (2003) 139 A Crim R 460
- R v Adamson [2005] NSWCCA 7
- Cheih-Wei Lin v R [2015] NSWCCA 264
- R v Seller; R v McCarthy [2015] NSWCCA 76; (2015) 89 NSWLR 155
- Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92; (2015) 250 A Crim R 154
- R v Bauer (2018) 266 CLR 56; [2018] HCA 40
- Director of Public Prosecutions (NSW) v RDT [2018] NSWCCA 293
- Nabi v Director of Public Prosecutions (NSW) [2022] NSWCA 92
- PJ v R (2023) 111 NSWLR 414; [2023] NSWCCA 105
- R v Passmore (2021) 110 NSWLR 292; [2021] NSWCCA 201
- Secretary, Department of Planning and Environment v Harris [2024] NSWCCA 88