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 two appellants were former residents of the Sirius Building at Circular Quay who were convicted in the Local Court of offences related to sub-letting their Housing Commission apartment for profit. They appealed their convictions to the District Court, where they also sought an adjournment and leave to adduce fresh evidence under section 18 of the Crimes (Appeal and Review) Act 2001. The District Court judge refused both applications in December 2024.
The appellants then sought to appeal those interlocutory refusals to the Court of Criminal Appeal, applying for leave under section 5F(3)(a) of the Criminal Appeal Act 1912. The central question was whether the Court of Criminal Appeal had jurisdiction to hear such an appeal at all.
Legal Issues
- Whether the Court of Criminal Appeal has jurisdiction to entertain an appeal against interlocutory orders made by the District Court in the course of hearing an appeal from a Local Court conviction
- Whether District Court proceedings constituted proceedings "for the prosecution of offenders on indictment" within the meaning of section 5F(1)(a) of the Criminal Appeal Act 1912
- Whether section 5F of the Criminal Appeal Act 1912 must be read down and made subject to section 176 of the District Court Act 1973
Decision
Issue 1: Whether section 5F applies to District Court appeals from the Local Court
The appellants argued that section 5F(1)(a) applied because the District Court proceedings were "proceedings for the prosecution of offenders on indictment," relying on the broad inclusive definition of "indictment" in section 2 of the Criminal Appeal Act and observations by Basten JA in Sasterawan v Morris. While the court acknowledged that this definition blurs the traditional distinction between indictable and summary proceedings, it noted that the definition is expressly qualified: it applies "unless the context or subject-matter otherwise requires or indicates" (at [15]).
Issue 2: The effect of section 176 of the District Court Act
Harrison CJ at CL identified a consistent line of authority from the Court of Appeal confirming that section 176 of the District Court Act clearly intended to limit recourse to the Supreme Court following a District Court appeal from a Local Court conviction, confining that avenue to jurisdictional error under section 69 of the Supreme Court Act 1970 (at [16]-[19]). The court noted that Sasterawan was the only case raising the specific argument advanced here, and it stood against the otherwise established authorities (at [16]).
Issue 3: Reading the two Acts together
Applying the principle that where two statutes are prima facie in conflict they may be reconciled by reading one as subject to the other, the court concluded that section 5F of the Criminal Appeal Act must be read down and made subject to section 176 of the District Court Act (at [20]-[21]). Section 5F has general application to appeals from interlocutory decisions in District Court prosecutions on indictment, but section 176 constrains that avenue where the District Court is itself sitting as an appellate court from the Local Court (at [21]). Accordingly, the Court of Criminal Appeal held it lacked jurisdiction to hear the appeal.
Orders Made
- The Court of Criminal Appeal does not have jurisdiction to determine this appeal.
Key Takeaways
- Section 5F of the Criminal Appeal Act 1912 must be read down and made subject to section 176 of the District Court Act 1973, meaning the Court of Criminal Appeal does not have jurisdiction to hear appeals against interlocutory orders made by the District Court in the course of determining an appeal from a Local Court conviction (at [21]).
- The legislature's intention, confirmed by a consistent line of Court of Appeal authority, is to narrow further appeals from District Court orders in Local Court appeal matters to instances of jurisdictional error, reviewable under section 69 of the Supreme Court Act 1970 (at [20]).
- Where two statutes are prima facie in conflict, they may be reconciled by reading one as subject to the other, rather than treating the later provision as impliedly repealing the earlier one (at [20]).
- The broad inclusive definition of "indictment" in section 2 of the Criminal Appeal Act, which extends to summary proceedings, does not automatically enlarge the Court of Criminal Appeal's appellate jurisdiction where a specific limiting provision in another Act applies (at [15], [21]).
- Sasterawan v Morris was the only authority lending any support to the appellants' jurisdictional argument and was treated as inconsistent with the prevailing line of Court of Appeal authority on the scope of section 176 (at [16]).
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), s s 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
- 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