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District Court 12 May 2026

Balsiene & Balsyte v NSW Land and Housing Department

[2026] NSWDC 143

Fraud & dishonesty
CRIMINAL LAW PROCEDURE RULING CONVICTION APPEAL SEVERITY APPEAL APPLICATION TO ADDUCE FRESH EVIDENCE

Citation: [2026] NSWDC 143
Court: District Court of New South Wales
Date: 12 May 2026
Judge(s): Hanley SC, Deputy Chief Judge

Background

The two appellants, a mother and daughter, appealed against their Local Court convictions and sentences for offences under s 192E of the Crimes Act (obtaining a financial advantage by deception). They had been found guilty of intentionally deceiving the NSW Land and Housing Corporation by failing to disclose that they were not residing in their allocated public housing unit at The Sirius building in The Rocks between January and July 2011. Instead, they were living at a property in Chatswood.

The appellants were also convicted of sub-letting the public housing apartment to third persons without informing the Corporation, while continuing to receive the benefit of rebated rent. A majority of similar charges covering the longer period from July 2011 to mid-2017 were dismissed by the Magistrate as not proven beyond reasonable doubt.

The appellants lodged an all-grounds appeal in the District Court in April 2023. They also filed successive applications to adduce fresh evidence, the first of which was refused by Judge M Williams SC in December 2024. An attempted appeal of that refusal to the Court of Criminal Appeal was refused for lack of jurisdiction, and a subsequent appeal to the Court of Appeal was dismissed with costs in December 2025. The appellants then filed a new motion before Hanley SC DCJ, along with 55 grounds of appeal.

  • Whether the appellants should be granted leave to adduce fresh evidence on appeal, pursuant to s 18(2) of the Crimes (Appeal and Review) Act 2001.
  • Whether error could be established in the Magistrate's findings of guilt sufficient to warrant overturning the convictions.
  • The proper approach to a conviction appeal from the Local Court to the District Court, including the extent of the rehearing and the weight to be given to the Magistrate's credibility findings.
  • What role the public interest in finality of litigation plays in the "interests of justice" test for admitting fresh evidence.
  • Whether the appellants' prior legal representation at first instance affected the threshold for granting leave to adduce fresh evidence.

Decision

The Court set out in detail the legal framework governing conviction appeals from the Local Court to the District Court under Part 3, Division 1 of the Crimes (Appeal and Review) Act 2001. Such appeals proceed as a rehearing on the evidence from the original proceedings, unless leave is granted for fresh evidence under s 18(2). The Court emphasised that a grant of leave to adduce fresh evidence is "exceptional" and not a matter of course, citing Charara v R.

Hanley SC DCJ outlined the "interests of justice" test from Landsman v R, noting it involves balancing the interests of the parties alongside broader considerations of legal principle, public interest, and policy. In rare circumstances, the interests of justice may override the public policy favouring finality of litigation, as recognised in Mickelberg v R, though that case involved convictions based on false evidence. Judge Williams SC's earlier refusal had relied on the public interest in finality.

The Court acknowledged that some material filed by the appellants in the Registry before the earlier hearing had not been before Judge Williams SC and was therefore included in the fresh motion. The judgment noted that the onus on appellants to succeed in a fresh evidence application increases where they were represented by experienced criminal law practitioners at first instance. The Court observed that the appellants' former lawyers had strenuously advocated their case, taking objections, challenging evidence, and cross-examining prosecution witnesses on instructions from the appellants.

Regarding the nature of the rehearing, the Court confirmed (following Lunney v DPP and McNab v DPP) that this is not a de novo hearing. The District Court's jurisdiction to intervene is enlivened upon a demonstration of error in fact-finding, identification or application of the law, or exercise of a discretionary power. The appellate judge may consider but is not bound by the Magistrate's credibility findings, and must ultimately decide the facts and law for themselves, not overturning the Local Court decision unless satisfied it was in some respect wrong.

Orders Made

  • The judgment text provided is truncated and does not include final orders. Based on the available text, the Court was ruling on the fresh evidence application and outlining the framework for determining the conviction and severity appeal. The final disposition of the appeal is not contained in the excerpt.

Key Takeaways

  • A grant of leave to adduce fresh evidence on appeal under s 18(2) of the Crimes (Appeal and Review) Act 2001 is exceptional, requiring the District Court to be satisfied it is in the interests of justice, which involves balancing party interests against broader public interest considerations including the finality of litigation.
  • Where appellants were represented by experienced criminal lawyers at first instance, the threshold for successfully applying to adduce fresh evidence on appeal is higher, because the court expects that competent counsel would have put the relevant case and evidence before the trial court.
  • Under the principles in Lunney v DPP and McNab v DPP, conviction appeals from the Local Court to the District Court are not de novo rehearings. Error must be demonstrated through the appellant's grounds, and the appellate court is not obliged to conduct a freestanding review of all the evidence.
  • The appellate judge forms an independent judgment on the facts while recognising the Magistrate's natural advantage in observing witnesses, but is not bound by the Magistrate's credibility findings, particularly where the evidence can be tested against incontrovertible or undisputed facts.
  • Procedural missteps by the appellants, including filing appeals in the wrong court, did not prevent the District Court from considering material that had been filed but not placed before the judge who heard the earlier fresh evidence application.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 192E
- Crimes (Appeal and Review) Act 2001 (NSW), Part 3 Division 1, s 18
- Housing Act 2001 (NSW)

Cases:
- BHP Billiton v Schultz [2004] HCA 61; (2004) 221 CLR 400
- Charara v R [2006] NSWCCA 244; (2006) 164 A Crim R 39
- Douglass v The Queen [2012] HCA 34
- Herron v Attorney-General for NSW (1987) 8 NSWLR 601
- Landsman v R [2014] NSWCCA 328; (2014) 88 NSWLR 534
- Liberato and Ors v The Queen (1985) 159 CLR 507
- Lunney v DPP [2021] NSWCA 186
- McNab v DPP (NSW) (2021) 106 NSWLR 430
- Mickelberg v R [1989] HCA 35; (1989) 167 CLR 259
- R v Markuleski (2001) 52 NSWLR 82
- R v Wong [2022] NSWDC 257