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Belan v Commissioner of Corrective Services

Belan v Commissioner of Corrective Services

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Supreme Court

New South Wales

Medium Neutral Citation: Belan v Commissioner of Corrective Services and Anor [2020] NSWSC 1503
Hearing dates: 19, 20 and 21 October 2020
Date of orders: 21 October 2020
Decision date: 28 October 2020
Jurisdiction: Common Law
Before: Johnson J
Decision:
1. Amended Summons dismissed.
2. No order as to costs.

Catchwords:
CRIME - habeas corpus - Plaintiff convicted and sentenced in Local Court for 59 counts of fraud and related offences involving alleged loss of $657,000.00 - Local Court passes aggregate sentence of imprisonment of four years with three year non-parole period - Plaintiff appeals to District Court against conviction and sentence - Plaintiff granted bail for purpose of appeal - District Court Judge gives judgment after hearing of conviction appeal - conviction appeal upheld on two counts and dismissed on 57 counts involving $580,000.00 - hearing of sentence appeal adjourned for a month - Judge refuses bail of the Court’s own motion - detention application not made by prosecutor - claim for habeas corpus - whether power to refuse bail in circumstances - consideration of Bail Act 2013 - held power existed to refuse bail - jurisdictional error not established - consideration of discretionary basis to refuse habeas corpus if jurisdictional error had been demonstrated - availability of alternative remedy under Bail Act 2013 - close proximity of resumed hearing of District Court appeal - appropriate case to refuse relief on discretionary basis if foundation for habeas corpus had been established - claim for relief dismissed

Legislation Cited:
Bail Act 1978
Bail Act 2013
Bail Regulation 2014
Crimes (Appeal and Review) Act 2001
Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
District Court Act 1973
Evidence Act 1995
Supreme Court Act 1970

Cases Cited:
Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37
Anae v R [2018] NSWCCA 73
Antunovic v Dawson (2010) 30 VR 355; [2010] VSC 377
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47
CGU Insurance Limited v Blakeley (2016) 259 CLR 339; [2016] HCA 2
Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83
Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129
Dudley v A Judge of the County Court of Victoria and Anor [2020] VSCA 179
Eaves v James (1988) 33 A Crim R 369
Ex parte Williams (1934) 51 CLR 545; [1934] HCA 48
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
Jamal v Director of Public Prosecutions [2019] NSWCA 121
John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344; [2004] NSWCA 324
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
May v Warden of Ferndale Institution (2005) 3 SCR 809; [2005] SCC 82
McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 416
Munda v State of Western Australia…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 1503
Decision Date: 28 October 2020

CaseChat Overview and Summary

In the case of Belan v Commissioner of Corrective Services, the plaintiff sought habeas corpus relief to challenge the decision of a District Court Judge to refuse bail while his appeal against his conviction and sentence was pending. The plaintiff, who had been convicted in the Local Court for multiple counts of fraud, had his appeal against conviction partially upheld by the District Court. The District Court Judge refused bail of the Court’s own motion and did not make a detention application, leading to the plaintiff’s habeas corpus claim. The central issue before the court was whether the District Court Judge had the power to refuse bail in the circumstances presented, and if so, whether the refusal constituted a jurisdictional error warranting habeas corpus relief.

The court considered whether the power to refuse bail existed under the relevant provisions of the Bail Act 2013. It held that the power did indeed exist and that no jurisdictional error was made by the District Court Judge. The court then examined the discretionary basis for refusing habeas corpus relief, given that a jurisdictional error had not been established. The availability of alternative remedies under the Bail Act 2013, such as an application for bail, was noted. The court found the close proximity of the resumed hearing of the District Court appeal to be a significant factor. Given these considerations, the court deemed it an appropriate case to refuse relief on a discretionary basis, even if the foundational requirement for habeas corpus had been met.

Ultimately, the court dismissed the plaintiff's claim for habeas corpus relief. It determined that the refusal of bail by the District Court Judge was not a jurisdictional error, and there was no basis to grant the relief sought on a discretionary basis due to the impending hearing of the appeal. The court’s decision underscored the importance of considering the timing and context of legal proceedings when evaluating applications for habeas corpus. The dismissal of the claim affirmed the District Court Judge's authority to refuse bail in the circumstances and highlighted the availability of other legal avenues for the plaintiff to challenge the decision.

Orders