HIGH COURT OF AUSTRALIA
KIEFEL CJ,
GAGELER, GORDON, EDELMAN, STEWARD, GLEESON AND JAGOT JJATTORNEY-GENERAL (CTH) APPELLANT
AND
HUY HUYNH & ORS RESPONDENTS
Attorney-General (Cth) v Huynh
[2023] HCA 13
Date of Hearing: 8 & 9 November 2022
Date of Judgment: 10 May 2023S78/2022
ORDER
1. Appeal allowed.
2.Set aside the orders made by the Court of Appeal of the Supreme Court of New South Wales on 8 December 2021.
3.Remit the matter to the Court of Appeal for the hearing and determination of the further amended summons in accordance with the judgment of this Court.
On appeal from the Supreme Court of New South Wales
Representation
S P Donaghue KC, Solicitor-General of the Commonwealth, with T M Glover and C Ernst for the appellant (instructed by Australian Government Solicitor)
R J Wilson SC with D J Reynolds for the first respondent (instructed by Legal Aid (NSW))
G A Hill SC with J S Stellios, appearing as amici curiae (instructed by Australian Government Solicitor)
R J Orr KC, Solicitor-General for the State of Victoria, with T M Wood for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)
Submitting appearances for the second and third respondents
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
KIEFEL CJ, GAGELER AND GLEESON JJ. Mr Huynh was convicted and sentenced to a term of imprisonment following a trial on indictment in the District Court of New South Wales for an offence under ss 11.5(1) and 307.11(1) of the Criminal Code (Cth). He appealed against the conviction to the Court of Criminal Appeal of the Supreme Court of New South Wales pursuant to s 5 of the Criminal Appeal Act 1912 (NSW) as applied by force of s 68(1) and (2) of the Judiciary Act 1903 (Cth). The Court of Criminal Appeal dismissed the appeal[1].
Mr Huynh subsequently applied to the Supreme Court of New South Wales pursuant to s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) ("the CAR Act") for an inquiry into the conviction. By that application, he sought to obtain an order under s 79(1)(b) of the CAR Act referring the whole of his case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act. The application was considered and dismissed on its merits by Garling J[2].
[2]Application of Huy Huynh under Part 7 of the Crimes (Appeal and Review) Act 2001 for an Inquiry [2020] NSWSC 1356.
Mr Huynh then applied by originating summons in the Court of Appeal of the Supreme Court of New South Wales for judicial review of the decision of Garling J pursuant to s 69 of the Supreme Court Act 1970 (NSW). The respondents to the application for judicial review were the Attorneys-General of New South Wales and the Commonwealth…
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- Case
- [2023] HCA 13
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the High Court were whether sections 78 and 79 of the Crimes (Appeal and Review) Act 2001 (NSW) applied of their own force to a person convicted of a Commonwealth offence, and whether section 68(1) of the Judiciary Act 1903 (Cth) operated to incorporate these NSW provisions into federal jurisdiction. Further questions arose regarding the severability of these provisions and whether their application impermissibly conferred non-consensual administrative duties on state judicial officers.
The Court reasoned that section 68(1) of the Judiciary Act 1903 (Cth) is designed to "pick up and apply" state laws in federal jurisdiction, but this operation is limited to situations where the state law, when applied to a Commonwealth offence, does not acquire an "altered meaning" compared to its application to a state offence. Drawing on precedent, the Court distinguished between permissible extensions of state laws into federal jurisdiction and impermissible alterations that would change the legal operation of the provision. The Court found that the NSW provisions in question, when applied to a Commonwealth offender, would operate differently from their application to a state offender, thereby altering their meaning and effect.
Consequently, the High Court allowed the appeal, set aside the orders of the NSW Court of Appeal, and remitted the matter for determination in accordance with the Court's judgment. This indicates that the NSW provisions were not to be applied to the Commonwealth offender in the manner previously ordered.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders made by the Court of Appeal of the Supreme Court of New South Wales on 8 December 2021.
3. Remit the matter to the Court of Appeal for the hearing and determination of the further amended summons in accordance with the judgment of this Court.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Established by: GORDON AND STEWARD JJ
These concepts are all useful. But, individually or cumulatively, they do not necessarily yield an answer to the application of s 68(1) of the Judiciary Act. It must also be recognised that, to some extent or another, all statutory provisions are capable of being characterised as part of a statutory scheme. Accordingly, while these concepts may all expose something meaningful about the operation of s 68(1) of the Judiciary Act with respect to a particular State or Territory law, the relevant question remains whether the State or Territory law, as would be applied by s 68(1), is given an altered meaning in its application to a person charged with an offence against a law of the Commonwealth (that is, altered as compared to its meaning as applied to a person charged with an offence against a law of the State or Territory)[376]. Examples of cases falling on one or other side of the divide assist in exposing this limitation on the operation of s 68(1).[376]Solomons (2002) 211 CLR 119 at 146 [60].Examples of s 68(1): permissible extension or impermissible alteration? In Brown v The Queen[377], s 68(1) of the Judiciary Act did not apply to a person charged with an offence against a law of the Commonwealth a provision of a State Act permitting an accused to elect a trial before a judge alone (because the application of that provision in federal jurisdiction would contravene s 80 of the Constitution) but did apply to that person the balance of the State Act relating to juries. The effect was that an accused charged with an offence against a law of the Commonwealth did not have the same right to make an election for a trial before a judge alone which an accused charged with an offence against the laws of the State would enjoy. This effect, implicitly at least, was not characterised as giving an altered meaning to the part of the State law applied by s 68(1) of the Judiciary Act.[377](1986) 160 CLR 171. Similarly, in Cheatle v The Queen[378], s 68(1) of the Judiciary Act did not apply to a person charged with an offence against a law of the Commonwealth a provision of a State Act enabling majority verdicts (because the application of that provision in federal jurisdiction would contravene s 80 of the Constitution) but did apply to that person the balance of the State Act relating to trials on indictment. The effect was that an accused charged with an offence against a law of the Commonwealth could be convicted only by unanimous verdict of the jury, whereas an accused charged with an offence against a law of the State could be convicted by a majority verdict. Again, this effect, implicitly at least, was not characterised as giving an altered meaning to the part of the State law applied by s 68(1) of the Judiciary Act.[378](1993) 177 CLR 541. A case in which the nature and extent of the integration of the relevant provisions of the laws of the State, and the lack of relevant equivalent legal or factual circumstances in federal jurisdiction, meant that no part of the law could be applied by s 68(1) of the Judiciary Act is Solomons v District Court (NSW)[379]. In that case, the statute concerned the grant of a costs certificate by a court in which the only purpose of the grant was to enable an application for the payment of costs by the State[380].[379](2002) 211 CLR 119.[380]Solomons (2002) 211 CLR 119 at 132 [15].The present case