Belan v The Queen - [2020] NSWDC 715

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
Regina
Representation:
Counsel:
Appellant: Mr S Lawrence,
Mr A Duc
Respondent: Mr C Evans
Solicitors:
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Sequences 34 and 42 were withdrawn by the prosecution on commencement of the hearing;

Sequence 21 (a backup to Sequence 20) was withdrawn when the appellant was convicted in respect of Sequence 20;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.
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…

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.

Continue reading Belan v The Queen

Details

AGLC: Belan v The Queen [2020] NSWDC 715
Case: [2020] NSWDC 715
Decision Date: 25 September 2020

CaseChat Overview and Summary

In the Federal Court of Australia, the appellant, Mr. Belan, brought an appeal against his conviction and sentence imposed by a magistrate. The appeal was against his conviction on 58 counts of dishonestly obtaining a financial advantage or causing a financial disadvantage by deception, as well as one count of participating in a criminal group by directing any of the activities of the group. The court was required to decide whether the charge was multiplicitous and whether the magistrate erred in preferring the evidence of the prosecution witnesses over that of the appellant.

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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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 Regina
Representation:	Counsel: Appellant: Mr S Lawrence, Mr A Duc Respondent: Mr C Evans Solicitors: 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