Balsiene v Department of Housing, NSW Land and Housing Corporation

[2022] NSWSC 108

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Balsiene and Anor v Department of Housing, NSW Land and Housing Corporation [2022] NSWSC 108

Hearing dates:

11 February 2022

Date of orders:

11 February 2022

Decision date:

11 February 2022

Jurisdiction:

Common Law

Before:

Johnson J

Decision:

To the extent there is not already a stay of the orders made by the Local Court on 31 January 2022, by operation of s.63 Crimes (Appeal and Review) Act 2001, the orders of the Local Court on 31 January 2022 are stayed until further order of this Court.

Catchwords:

CRIME – Appeal from Local Court to Supreme Court – stay pending appeal – appeal filed after conviction but before sentence – plaintiffs then sentenced – operation of stay pending appeal

Legislation Cited:

Crimes (Appeal and Review) Act 2001

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Balsiene v (Department of Housing) NSW Land and Housing Corporation [2022] NSWSC 47

Texts Cited:

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Category:

Procedural rulings

Parties:

Genute Balsiene and Saule Balsyte (Plaintiffs)
Department of Housing, NSW Land and Housing Corporation (Defendant)

Representation:

Counsel:
Plaintiffs in Person
Mr T Di Francesco (Defendants)

Solicitors:
Department of Communities and Justice (Defendant)

File Number(s):

2022/18244

Publication restriction:

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Judgment

1. JOHNSON J: The Common Law Registrar has referred to me, as Common Law Duty Judge, an aspect of proceedings between the Plaintiffs, Genute Balsiene and Saule Balsyte, and the Defendant, the Department of Housing, NSW Land and Housing Corporation.

2. By way of background, the material before the Court indicates that, on 22 December 2021, each of the Plaintiffs was found guilty in the Local Court of fraud offences under s.192E Crimes Act 1900. The proceedings were stood over for sentence on 31 January 2022.

3. On 21 January 2022, the Plaintiffs filed a Summons seeking leave to appeal in this Court under the Crimes (Appeal and Review) Act 2001 with respect to their convictions.

4. On 25 January 2022, the proceedings came before Garling J in circumstances where there was an application for expedition together with an application to stay the proceedings (that is, the sentencing proceedings) then scheduled to take place on 31 January 2022. Garling J delivered judgment granting the Plaintiffs expedition of the proceedings, but declined to grant a stay in circumstances explained in his Honour's judgment: Balsiene v (Department of Housing) NSW Land and Housing Corporation [2022] NSWSC 47. His Honour made clear the proceedings were not complete and that it was not considered appropriate to grant a stay at that time.

5. The sentencing hearing proceeded before the Local Court on 31 January 2022. The Magistrate proceeded to sentence each Plaintiff by way of a community correction order for 20 months under s.8 Crimes (Sentencing Procedure) Act 1999, together with associated orders as to costs. In this way, there is a non-custodial community-based order, which is in operation against each of the Plaintiffs.

6. The Plaintiffs communicated with the Local Court as to whether the filing of their Summons on 21 January 2022 constituted a stay of the sentencing orders. The Court has been informed that the response from the Local Court was that there ought to be some formal order to demonstrate that a stay was in existence. The approach of the Local Court is understandable in circumstances where the filing of the document in this Court actually preceded the imposition of the sentences on 31 January 2022.

7. The Plaintiffs filed a Notice of Motion on 9 February 2022 seeking a stay and seeking to amend the Summons to include the orders made by way of sentence on 31 January 2022.

8. That Notice of Motion came before Registrar Jones this morning. Registrar Jones made orders that the Defendant is to write to the Plaintiffs by 4.00 pm on 14 February 2022 setting out any objections to the proposed Notice of Appeal and a further order standing over the proceedings for directions at 9.00 am on 17 February 2022 at 9.00 am.

9. The parties had agreed as to the formula of words concerning the stay issue. The Registrar, understandably, requested the parties to bring to my attention in Chambers the proposed stay order in case the Court took the view that this was a matter that should be listed before me as Duty Judge.

10. Having considered the proposed stay, I formed the view that it was appropriate to list the matter for what has been a brief hearing to discuss the order which is sought.

11. The Plaintiffs (who are unpresented) have appeared by audio-visual link as has Mr Di Francesco, who appears for the Defendant. The proposed stay order was in these terms:

“To the extent that there is not already a stay of the orders made by the Local Court on 31 January 2022 by operation of s 63 of the Crimes (Appeal and Review) Act 2001 these orders be stayed by order of this Court until further order.”

12. Section 63(2) Crimes (Appeal and Review) Act 2001 provides that:

“63(2)   The execution of any such sentence, and the operation of any such penalty, restitution, compensation, forfeiture, destruction, disqualification or loss or suspension of a licence or privilege, is stayed—

(a)    except as provided by paragraphs (b) and (c), when notice of appeal is duly lodged, or

(b)    in the case of an appellant whose appeal is the subject of an application for leave, when leave to appeal is granted, or

(c) in the case of an appellant who is in custody when the appeal is made or leave to appeal is granted, when the appellant is entitled to be released from custody on bail under section 14 of the Bail Act 2013 or bail is dispensed with under that Act.”

13. I note that s.63(2)(b) provides that, in the case of an appellant whose appeal is the subject of an application for leave, then the stay is to operate when leave to appeal is granted. I will return to this topic in a moment.

14. Section 63(2)(c) relates to persons in custody and is not relevant to the present case.

15. During the course of this afternoon's hearing, I have raised with the Plaintiffs the nature of the appeal which they seek to bring. The appeal to this Court from the Local Court with respect to conviction or sentence in criminal proceedings is a relatively narrow one. Section 52 Crimes (Appeal and Review) Act 2001 provides for an appeal as of right, but only on a ground that involves a question of law alone. Section 53 of that Act provides for an appeal to this Court against conviction or sentence on a ground that involves a question of fact or a question of mixed law and fact, but only by leave of the Supreme Court.

16. The Notice of Appeal, which has been filed, has detailed content. I take it that the Plaintiffs are seeking to assert that there has been an error of law or, alternatively, error involving a question of fact or a question of mixed law and fact, which would require leave.

17. Mr Di Francesco has accepted that the Court should proceed on the basis that the stay provision operates concerning these proceedings. I take that to mean that the Defendant accepts that it is appropriate that the Court proceed on the basis that a Notice of Appeal was lodged on 21 January 2022 and that the lodgement of that process operates, so that what occurred on 31 January 2022 should also be regarded as being subject to that Notice of Appeal.

18. As I have noted, s.63(2)(a) and (b) distinguishes between a case where all that has been lodged is an application for leave to appeal. In the latter case, s.63(2)(b) makes clear that a stay will be in force only when leave to appeal is granted. Clearly, no leave to appeal has been granted as yet. A hearing has not commenced, the proceedings are at an early stage and that is an issue which lies ahead.

19. I proceed, however, on the basis that a claim that there has been an error of law is sufficient to fall within s.52, which requires a ground that involves a question of law alone. If there is a claim of that type, then s.63(2)(a) should operate, so that the stay is in force from the time the Notice of Appeal is lodged. That, as I understand it, is the position which the Defendant accepts as being appropriate in these circumstances.

20. It is for that reason that the Court comprehends the proposed consent order as inviting the Court to confirm that s.63 operates, so that there is a stay in force.

21. I have taken the view that it is appropriate to spell these matters out in a judgment, because of the point which these proceedings have reached. It will be appropriate for the Local Court to be informed of what the Court has said and the order which the Court will shortly make.

22. Before concluding this judgment, however, I should raise one further matter. The Notice of Appeal, which accompanies the Notice of Motion, filed on 9 February 2022, has as appeal grounds, amongst other things, the following:

“1.    We are not guilty and innocent.

2. We were wrongfully found guilty on 22 December 2021 regarding the charges under s 192E, Crimes Act 1900.”

23. Appeal Grounds 3 and 4 complain about the presiding Magistrate declining adjournment applications and proceeding to convict and sentence the Plaintiffs.

24. Ground 5 says:

“We appeal the above pursuant to the Crimes (Appeal and Review) Act NSW 2001 s 52(1) on a ground that involves question of law alone and Crimes (Appeal and Review) Act NSW 2001 s 53(1)(a), (b) on the question of mixed law and fact.”

25. What is said to be ground 6 sets out, at some length, what it is that the Plaintiffs seek to "rectify" with respect to the Local Court proceedings.

26. Ground 7 says "We ask for de novo appeals”.

27. Grounds 8 and 9 indicate a desire to raise further grounds after review of the transcript and the intention to rely on written submissions dated 8 January 2022.

28. Because of the appeal grounds, I raised expressly with the Plaintiffs the nature of the appeal which they are seeking to bring. For more abundant caution, I indicated to the Plaintiffs that there is provision in ss.11 to 20 Crimes (Appeal and Review) Act 2001 for a broader form of appeal against conviction in the District Court. Section 18(1) of the Act says "An appeal against conviction to the District Court is to be by way of rehearing on the evidence”.

29. Ms Saule Balsyte, the daughter of the other Plaintiff, has informed the Court that the Plaintiffs are aware of the availability of an appeal to the District Court, and the difference between appeals to the District Court and the Supreme Court.

30. It is not for the Court to give legal advice to the Plaintiffs. I have not purported to do so. I have felt it appropriate, however, in circumstances where the appeal grounds seek a "de novo appeal" to raise directly with them, in this limited procedural hearing, the distinction between appeals to the District Court and the Supreme Court. I have raised these further issues to ensure that there be no misunderstanding concerning these different forms of appeal.

31. I have already noted that the Registrar has made orders adjourning the proceedings and requiring the Defendant to communicate with the Plaintiffs concerning any objections.

32. For the reasons explained in this judgment, I consider that it is appropriate to make the order sought and I will utilise the formula of words agreed between the parties for that purpose. The effect of the order is that a stay has operated since 31 January 2022. The stay continues in force until the appeal is finally determined: s.63(3) Crimes (Appeal and Review) Act 2001.

33. I make the following order:

• To the extent there is not already a stay of the orders made by the Local Court on 31 January 2022, by operation of s.63 Crimes (Appeal and Review) Act 2001, the orders of the Local Court on 31 January 2022 are stayed until further order of this Court.

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Amendments

16 February 2022 - Amended to [2] - s.92E amended to s.192E.

Decision last updated: 16 February 2022