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Huynh v Attorney General (NSW)

Huynh v Attorney General (NSW)

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Case Copied 8 December 2021 85 min read

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Court of Appeal

Supreme Court

New South Wales

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Amendment notes

Medium Neutral Citation: Huynh v Attorney General (NSW) [2021] NSWCA 297
Hearing dates: 19 August 2021
Date of orders: 8 December 2021
Decision date: 08 December 2021
Before: Bathurst CJ at [1];
Basten JA at [2];
Gleeson JA at [128];
Leeming JA at [129];
Payne JA at [251]
Decision:
(1) Declare that the power conferred by s 79 of the Crimes (Appeal and Review) Act 2001 (NSW):
(a)   is to be exercised by the Chief Justice or a judge of the Court authorised by the Chief Justice as a persona designata;
(b)   is not available with respect to a conviction or sentence for an offence against a law of the Commonwealth heard and determined in a New South Wales court.
(2) Declare that the decision of Garling J purporting to determine an application lodged with the Supreme Court by Huy Huynh under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) with respect to his conviction for a contravention of the Criminal Code 1995 (Cth) is void and of no effect.
(3)   Otherwise dismiss the summons.

Catchwords:
COURTS AND JUDGES – supervisory jurisdiction –
post-appeal application to Supreme Court for inquiry into conviction under Pt 7, Div 3 of the Crimes (Appeal and Review) Act 2001 (NSW) – power to consider application conferred on judge authorised by Chief Justice – power not conferred on Supreme Court – judge acting as persona designata
COURTS AND JUDGES – supervisory jurisdiction –
post-appeal application to Supreme Court for inquiry into conviction – conviction for breach of a law of the Commonwealth – whether State Act applies of its own force – whether State Act picked up and applied as Commonwealth law – operation of s 68 of Judiciary Act 1903 (Cth) where part only of State law ancillary to exercise of judicial power
CRIME – federal offenders – offender convicted by State court for offence against federal law – applicability of State laws permitting post-appeal application to Supreme Court for inquiry into conviction
JUDICIAL REVIEW – exercise of administrative power by Supreme Court judge – whether acting under a Commonwealth enactment – availability of judicial review – whether decision reviewable by Federal Court

Legislation Cited:
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 9
Constitution, ss 51(xxxix), 51(xxiv), 61, 71, 73, 75, 76, 77, 79, 80; Ch III
Crimes Act 1914 (Cth), ss 4AAA, 4AAB, 21D, 43; Pt 1B
Criminal Code 1995 (Cth), ss 11.5, 307.11
Judiciary Act 1903 (Cth), ss 2, 39, 39B, 68, 72, 78, 78B, 79
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), ss 4, 6
Civil Procedure Act 2005 (NSW), s 183
Courts Legislation Further Amendment Act 1998 (NSW), Sch 10[12]
Crimes (Appeal and Review) Act 2001 (NSW), ss 74, 75, 76, 77, 78, 79, 80, 81, 82, 84, 85, 86, 87, 114; Pt 7, Divs 1, 2, 3, 4, 5
Crimes (Sentencing Procedure) Act 1999 (NSW), s 102
Crimes Act 1900 (NSW), ss 474E,…

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: [2021] NSWCA 297
Decision Date: 08 December 2021

CaseChat Overview and Summary

The case of *Huynh v Attorney General (NSW)* concerned an application made by Huy Huynh to the Supreme Court of New South Wales for an inquiry into his conviction for a contravention of the Commonwealth Criminal Code 1995. The application was brought under Part 7, Division 3 of the *Crimes (Appeal and Review) Act 2001* (NSW). The Supreme Court, constituted by Bathurst CJ, Basten, Gleeson, Leeming and Payne JJA, was required to determine whether the provisions of the NSW Act applied to a conviction for a federal offence and, if so, in what capacity a judge of the Supreme Court would be acting.

The central legal issues before the Court were whether the power conferred by section 79 of the *Crimes (Appeal and Review) Act 2001* (NSW) was available for a conviction under a law of the Commonwealth, and whether a judge exercising such a power would be acting as a judge of the Supreme Court or *persona designata*. The Court also considered the operation of section 68 of the *Judiciary Act 1903* (Cth) in circumstances where a State Act is ancillary to the exercise of judicial power.

The Court reasoned that the power under section 79 of the *Crimes (Appeal and Review) Act 2001* (NSW) was to be exercised by the Chief Justice or a judge authorised by the Chief Justice *persona designata*, meaning they were not acting in their capacity as a judge of the Supreme Court. Crucially, the Court held that this power was not available with respect to a conviction or sentence for an offence against a law of the Commonwealth heard and determined in a New South Wales court. This was because the State Act, in this context, was not picked up and applied as Commonwealth law. Consequently, the Court declared that the decision of Garling J, purporting to determine Mr Huynh's application, was void and of no effect.

Orders

Orders of the court

(1) Declare that the power conferred by s 79 of the Crimes (Appeal and Review) Act 2001 (NSW):

(a) is to be exercised by the Chief Justice or a judge of the Court authorised by the Chief Justice as a persona designata;

(b) is not available with respect to a conviction or sentence for an offence against a law of the Commonwealth heard and determined in a New South Wales court.

(2) Declare that the decision of Garling J purporting to determine an application lodged with the Supreme Court by Huy Huynh under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) with respect to his conviction for a contravention of the Criminal Code 1995 (Cth) is void and of no effect.

(3) Otherwise dismiss the summons.

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

Consideration of applications After considering an application under section 78 or on its own motion—(a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person’s guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if—(a) it appears that the matter—(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or(ii) has previously been dealt with under this Part or under the previous review provisions, or(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application). Reference to Court under section 77 (1) (b) or 79 (1) (b) following petition to Governor or application to Supreme Court Appeal in proceedings before the Court Subject to this and any other Act and subject to the rules, an appeal shall lie to the Court of Appeal from—(a) any judgment or order of the Court in a Division, and(b) without limiting the generality of paragraph (a)—(i) any opinion, decision, direction or determination of the Court in a Division on a stated case,(ii) any exercise of a power to which section 24 applies, and(iii) any determination of the Court in a Division in proceedings remitted under subsection (4) of section 51. Criminal proceedings Except as provided in this section this Act and the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule, and no claim for relief lies to the Court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of that Schedule.

Medium Neutral Citation:	Huynh v Attorney General (NSW) [2021] NSWCA 297
Hearing dates:	19 August 2021
Date of orders:	8 December 2021
Decision date:	08 December 2021
Before:	Bathurst CJ at [1]; Basten JA at [2]; Gleeson JA at [128]; Leeming JA at [129]; Payne JA at [251]
Decision:	(1) Declare that the power conferred by s 79 of the Crimes (Appeal and Review) Act 2001 (NSW): (a) is to be exercised by the Chief Justice or a judge of the Court authorised by the Chief Justice as a persona designata; (b) is not available with respect to a conviction or sentence for an offence against a law of the Commonwealth heard and determined in a New South Wales court. (2) Declare that the decision of Garling J purporting to determine an application lodged with the Supreme Court by Huy Huynh under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) with respect to his conviction for a contravention of the Criminal Code 1995 (Cth) is void and of no effect. (3) Otherwise dismiss the summons.
Catchwords:	COURTS AND JUDGES – supervisory jurisdiction – post-appeal application to Supreme Court for inquiry into conviction under Pt 7, Div 3 of the Crimes (Appeal and Review) Act 2001 (NSW) – power to consider application conferred on judge authorised by Chief Justice – power not conferred on Supreme Court – judge acting as persona designata COURTS AND JUDGES – supervisory jurisdiction – post-appeal application to Supreme Court for inquiry into conviction – conviction for breach of a law of the Commonwealth – whether State Act applies of its own force – whether State Act picked up and applied as Commonwealth law – operation of s 68 of Judiciary Act 1903 (Cth) where part only of State law ancillary to exercise of judicial power CRIME – federal offenders – offender convicted by State court for offence against federal law – applicability of State laws permitting post-appeal application to Supreme Court for inquiry into conviction JUDICIAL REVIEW – exercise of administrative power by Supreme Court judge – whether acting under a Commonwealth enactment – availability of judicial review – whether decision reviewable by Federal Court
Legislation Cited:	Administrative Decisions (Judicial Review) Act 1977 (Cth), s 9 Constitution, ss 51(xxxix), 51(xxiv), 61, 71, 73, 75, 76, 77, 79, 80; Ch III Crimes Act 1914 (Cth), ss 4AAA, 4AAB, 21D, 43; Pt 1B Criminal Code 1995 (Cth), ss 11.5, 307.11 Judiciary Act 1903 (Cth), ss 2, 39, 39B, 68, 72, 78, 78B, 79 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), ss 4, 6 Civil Procedure Act 2005 (NSW), s 183 Courts Legislation Further Amendment Act 1998 (NSW), Sch 10[12] Crimes (Appeal and Review) Act 2001 (NSW), ss 74, 75, 76, 77, 78, 79, 80, 81, 82, 84, 85, 86, 87, 114; Pt 7, Divs 1, 2, 3, 4, 5 Crimes (Sentencing Procedure) Act 1999 (NSW), s 102 Crimes Act 1900 (NSW), ss 474E,…