District Court
New South Wales
Medium Neutral Citation: Belan v R [2020] NSWDC 715 Hearing dates: 29 May 2020; 11 August 2020 Date of orders: 25 September 2020 Decision date: 25 September 2020 Jurisdiction: Criminal Before: King SC DCJ Decision: In respect of SEQ 46 & 64, the conviction appeal is upheld and the conviction and orders of the learned magistrate are quashed.
In respect of all other matters listed today:
The conviction appeal is dismissed.
The conviction is confirmed.
The sentence appeal is SOPH to 23 October 2020 at 10 a.m. Bail is refused.
Catchwords: CRIMINAL – appeal against conviction – 58 counts of dishonestly obtaining a financial advantage or causing a financial disadvantage by deception – 1 count of participating in a criminal group by directing any of the activities of the group - duplicity – credibility and demeanour
Legislation Cited: Crimes Act 1900
Crimes (Appeal and Review) Act 2001
Interpretation Act 1987 (NSW).
Cases Cited: R v SKL; R v JY; R vXGL [2019] NSWCCA 43
Category: Principal judgment Parties: Derrick Belan
ReginaRepresentation: Counsel:
Solicitors:
Appellant: Mr S Lawrence,
Mr A Duc
Respondent: Mr C Evans
Appellant: Mr H Ginges
Respondent: Ms M Tam
File Number(s): 2016/00344587 Decision under appeal
- Court or tribunal:
- Local Court New South Wales
- Jurisdiction:
- Criminal
- Date of Decision:
- 18 June 2018
- Before:
- Ms E Ellis LCM
- File Number(s):
- 2016/00344587
Judgment
-
There were originally 64 sequences against the appellant in the Local Court as follows:
Sequences 34 and 42 were withdrawn by the prosecution on commencement of the hearing;
Sequence 21 (a backup to Sequence 20) was withdrawn when the appellant was convicted in respect of Sequence 20;
The appellant after completion of all of the evidence pleaded guilty to Sequences 36 and 50 on 22 March 2018.
-
The conviction appeal relates to 59 sequences:
58 charges pursuant to s.192E(1)(b) Crimes Act 1900, of dishonestly obtain financial advantage or cause a disadvantage to the National Union of Workers (NUW) by deception spanning the period 17 October 2010 to 17 November 2016;
1 charge pursuant to s.93T(1A) Crimes Act 1900, participate in a criminal group between 13 March 2010 and 26 October 2015.
-
The overall quantum in respect of which it was alleged the appellant either obtained an advantage or subjected the NUW to a disadvantage was $650, 849.69 (T545).
-
On appeal the prosecution on considering the evidence before the Local Court and cross-referencing the extensive bank records contained in the exhibits now calculates the advantage to the appellant and the disadvantage to the NUW as $585,413.11.
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In addition the prosecution submits that there was inadequate evidence in respect of Sequence 64 on which to base a verdict of guilty beyond reasonable doubt. It is appropriate as a result of that submission to indicate now that I find the appellant not guilty in respect of Sequence 64 and accordingly quash that conviction.
-
The hearing was before her Honour Ms Ellis LCM and occupied eight days of evidence commencing on 13 March…
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- AGLC
- Belan v The Queen [2020] NSWDC 715
- Case
- [2020] NSWDC 715
- Decision Date
CaseChat Overview and Summary
The court considered the nature of the charges and whether they were multiplicitous, meaning that a single act could be characterised in more than one way and result in multiple charges. The court found that while the charges could potentially be multiplicitous, the trial magistrate had clearly distinguished each offence, ensuring that each offence was separate and distinct. The court also considered the issue of credibility and demeanour, noting that the magistrate had made findings based on the demeanour and credibility of the witnesses. The court found no error in the magistrate’s assessment of the evidence and affirmed that the magistrate was entitled to prefer the evidence of the prosecution witnesses over that of the appellant.
As a result of the court’s reasoning, the appeal against the conviction on counts 46 and 64 was upheld, and the conviction and orders of the learned magistrate were quashed. The appeal against the conviction on all other counts was dismissed, and the conviction was confirmed. The sentence appeal was remitted to the Supreme Court of New South Wales, and bail was refused.
Orders
Orders of the court
In respect of SEQ 46 & 64, the conviction appeal is upheld and the conviction and orders of the learned magistrate are quashed.
In respect of all other matters listed today:
The conviction appeal is dismissed.
The conviction is confirmed.
The sentence appeal is SOPH to 23 October 2020 at 10 a.m. Bail is refused.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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