Belan v Commissioner of Corrective Services and Anor [2020] NSWSC 1503

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 (2013) 249 CLR 600; [2013] HCA 38 Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 Potier v General Manager and Governor MRRC [2007] NSWSC 1031 PR v Department of Human Services (2007) 27 VAR 305; [2007] VSC 338 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Hilton (1986) 7 NSWLR 745 R v Lyons [2018] NSWSC 223 R v West [2014] NSWCCA 250 Re Officer in Charge of Cells, ACT Supreme Court; ex parte Eastman (1994) 68 ALJR 668; [1994] HCA 36 Re Superintendent of Goulburn Training Centre; Ex parte Pelle (1983) 57 ALJR 679 Rich v Secretary to the Department of Justice (2011) 33 VR 437; [2011] VSCA 402 RP & Anor v Foreman & Ors [2020] VSC 522 Ruddock v Vadarlis (2001) 110 FCR 491; [2001] FCA 1329 Sarah White v Local Health Authorities [2015] NSWSC 417 Stanizzo v Complainant [2013] NSWCCA 295 The King v The Commanding Officer of Morn Hill Camp, Winchester; ex parte Ferguson [1917] 1 KB 176 Yates v Commissioner of Corrective Services NSW [2014] NSWSC 653 Young v Registrar, Court of Appeal (No. 3) (1993) 32 NSWLR 262 Texts Cited: Clark and McCoy, "Habeas Corpus - Australia, New Zealand and the South Pacific", 2nd edn, Federation Press, 2018 Groves, "The Use of Habeas Corpus to Challenge Prison Conditions" (1996) 19 UNSW Law Journal 281 Category: Principal judgment Parties: Derrick Belan (Plaintiff) Commissioner of Corrective Services (First Defendant) Director of Public Prosecutions (NSW) (Second Defendant) Representation: Counsel: Mr AA Wilson (Plaintiff) Submitting Appearance (First Defendant) Ms BK Baker; Mr CS Evans (Second Defendant)