Huynh v Attorney General (NSW)

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.