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Huynh v The Queen

Huynh v The Queen

Case [2021] NSWCCA 148 9 July 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Huynh v R [2021] NSWCCA 148
Hearing dates: 21 May 2021
Date of orders: 9 July 2021
Decision date: 09 July 2021
Before: Bathurst CJ at [1];
Beech-Jones J at [2];
N Adams J at [59].
Decision:
The questions posed by the case stated are answered as follows:
(1) On an appeal against sentence brought pursuant to s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW) does the District Court have the power to set aside the conviction imposed by the Local Court, dismiss the charge, and discharge the appellant pursuant to s 20BQ(1) of the Crimes Act 1914 (Cth)?
   ANSWER: No.
(2) On an appeal against conviction brought pursuant to s 12(1) of the Crimes (Appeal and Review) Act 2001 (NSW) does the District Court have the power to set aside the conviction imposed by the Local Court, dismiss the charge and discharge the appellant pursuant to s 20BQ(1) of the Crimes Act 1914 (Cth)?
   ANSWER: Yes.
(3) On an appeal against sentence brought pursuant to s 11(1) of the Crimes (Appeal and Review) Act2001 (NSW) does the District Court have the power to set aside the conviction imposed by the Local Court and make orders pursuant to s 19B of the Crimes Act 1914 (Cth)?
   ANSWER: No.
(4) On an appeal against conviction brought pursuant to s 12(1) of the Crimes (Appeal and Review) Act 2001 (NSW) does the District Court have the power to set aside the conviction imposed by the Local Court and make orders pursuant to s 19B of the Crimes Act 1914 (Cth)?
   ANSWER: Yes.

Catchwords:
CRIMINAL LAW – powers of District Court in hearing appeal from Local Court under Crimes (Appeal and Review) Act 2001 – federal offences – whether District Court can exercise power under s 19B of Crimes Act 1914 – whether District Court can exercise power under s 20BQ of Crimes Act 1914 – Judiciary Act, s 68 and s 79 – whether powers can be exercised on appeal against sentence if no power to set aside conviction – whether powers can be exercised on appeal against conviction.

Legislation Cited:
Australian Constitution
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Appeal and Review) Amendment Act 2009 No 4 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code (Cth)
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 1986 (NSW)
District Court Act 1973 (NSW)
Federal Court of Australia Act 1976 (Cth)
Judiciary Act 1903 (Cth)
Justices Act 1902 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases Cited:
Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485
Ah Yick v Lehmert (1905) 2 CLR 593; [1905] HCA 22
ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1
Boulter v…

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 Huynh v The Queen

Details

AGLC: Huynh v The Queen [2021] NSWCCA 148
Case: [2021] NSWCCA 148
Decision Date: 09 July 2021

CaseChat Overview and Summary

The appellant, Huynh, was convicted in the Local Court and sought to appeal against both his conviction and sentence to the District Court. The appeal was heard under the Crimes (Appeal and Review) Act 2001, and Huynh argued that the District Court should exercise its powers under sections 19B and 20BQ of the Crimes Act 1914. These sections empower the court to set aside a conviction or sentence, respectively, if the court considers it appropriate. The central issue before the court was whether the District Court had the requisite powers under these sections to address an appeal against sentence when it had no power to set aside a conviction, and whether the powers could be exercised on an appeal against conviction.

The court examined the relevant provisions of the Crimes Act 1914, as well as sections 68 and 79 of the Judiciary Act, to determine the extent of the District Court's authority in such circumstances. It found that while the District Court could exercise its powers under sections 19B and 20BQ to set aside a conviction or sentence, these powers could not be exercised when the court was limited to an appeal against sentence and had no power to set aside a conviction. The court also noted that the powers under sections 19B and 20BQ could be exercised on an appeal against conviction, provided the court had the authority to set aside the conviction. This was a critical finding as it clarified the scope and limitations of the District Court's powers in appeals against sentence.

In conclusion, the court held that the District Court did not have the power to exercise its authority under sections 19B and 20BQ of the Crimes Act 1914 in an appeal against sentence when it had no power to set aside a conviction. However, the court did retain the ability to exercise these powers in an appeal against conviction, provided it had the requisite authority to set aside the conviction. This decision provides clarity on the powers of the District Court in handling appeals from the Local Court and the scope of its authority under the Crimes Act 1914.

Orders