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Court of Criminal Appeal 9 July 2021

Huynh v R

[2021] NSWCCA 148

Also reported as (2021) 105 NSWLR 384
Fraud & dishonesty
CRIMINAL LAW FEDERAL OFFENCES JUDICIARY ACT , S 68 AND S 79

Citation: Huynh v R [2021] NSWCCA 148
Court: Court of Criminal Appeal, NSW
Date: 9 July 2021
Judge(s): Bathurst CJ; Beech-Jones J; N Adams J (all agreeing)

Background

The appellant was charged with four counts of receiving a financial advantage from a Commonwealth entity, contrary to s 135.2(1) of the Criminal Code (Cth), returnable before the Parramatta Local Court. Before entering any plea, she applied to the Local Court for the charges to be dismissed under s 20BQ of the Crimes Act 1914 (Cth), a provision that permits a court of summary jurisdiction to dismiss a charge and discharge a person who appears to be suffering from a mental illness or intellectual disability. The Magistrate refused that application, after which the appellant pleaded guilty to all four counts and was convicted.

The appellant then appealed to the District Court against her sentences under s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (the CAR Act) and subsequently sought leave to appeal her convictions. At the hearing, a question arose as to whether the District Court, sitting as an appellate court under the CAR Act, could exercise the powers in s 20BQ or s 19B of the Crimes Act 1914 to dismiss charges and decline to record convictions.

Judge Hanley SC stated a case to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW), posing four specific questions about the District Court's powers in this appellate context.

  • Whether the District Court, on a sentence appeal under s 11(1) of the CAR Act, has power to set aside a Local Court conviction, dismiss the charge, and discharge the appellant under s 20BQ of the Crimes Act 1914 (Cth).
  • Whether the District Court, on a conviction appeal under s 12(1) of the CAR Act, has the same power under s 20BQ.
  • Whether the District Court, on a sentence appeal, has power to set aside a conviction and make orders under s 19B of the Crimes Act 1914 (Cth).
  • Whether the District Court, on a conviction appeal, has power to set aside a conviction and make orders under s 19B.
  • As a preliminary matter: whether the District Court can exercise the equivalent power under former s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) in either type of appeal.
  • Whether the District Court has an implied power to set aside a conviction when hearing only a sentence appeal.

Decision

Former s 32 of the Mental Health (Forensic Provisions) Act 1990 and the District Court's general powers on appeal

The Court held that s 28(2) of the CAR Act, which enables the District Court on appeal to exercise any function the Local Court could have exercised in the original proceedings, is broad enough to encompass powers such as that under former s 32 of the Mental Health (Forensic Provisions) Act 1990. The District Court should have available to it the full range of powers to deal with charges that the Local Court possessed, to the extent the CAR Act's language permits.

However, setting aside its own convictions is not a function of the Local Court. It follows that the power under former s 32 is only available to the District Court where the appeal challenges the conviction itself. On a sentence appeal alone, the District Court has no implied power to set aside the conviction entered below.

Section 20BQ: sentence appeal (Question 1) and conviction appeal (Question 2)

The Court answered Question 1 (sentence appeal) no, and Question 2 (conviction appeal) yes. The reasoning turned on the need for the District Court first to have power to set aside the conviction before s 20BQ can operate. On a conviction appeal, s 20(1) of the CAR Act expressly confers that power, which is picked up and applied to federal offences by ss 68(1) and 79(1) of the Judiciary Act 1903 (Cth). On a sentence appeal, no equivalent power to set aside a conviction exists under the CAR Act, and so the precondition for exercising s 20BQ is not met.

Section 19B: sentence appeal (Question 3) and conviction appeal (Question 4)

The Court answered Question 3 (sentence appeal) no, and Question 4 (conviction appeal) yes, for broadly analogous reasons. On a conviction appeal, once the conviction is set aside, s 19B is available because the prior conviction does not, of itself, prevent the power from being exercised. On a sentence appeal, the only potential source of power to set aside a conviction is s 3(3A) of the CAR Act, but that provision is confined to orders made under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW). It cannot be extended by ss 68(1) or 79(1) of the Judiciary Act to enable the making of an order under s 19B without impermissibly altering the language of the State statute.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court's appellate powers under s 28(2) of the CAR Act are broad enough to encompass the full range of dispositional powers the Local Court held in the original proceedings, including powers analogous to former s 32 of the Mental Health (Forensic Provisions) Act 1990, but only to the extent the CAR Act's language permits.
  • On a sentence appeal under the CAR Act, the District Court has no implied power to set aside a conviction entered by the Local Court; that power arises expressly only in a conviction appeal.
  • Where the District Court is hearing a conviction appeal and sets aside the conviction, both s 20BQ and s 19B of the Crimes Act 1914 (Cth) are available to it, with the connection to federal law supplied by ss 68(1) and 79(1) of the Judiciary Act 1903 (Cth).
  • Section 3(3A) of the CAR Act, which allows a conviction to be set aside in limited circumstances on sentence appeal, is confined to orders made under s 10 of the Crimes (Sentencing Procedure) Act 1999 and cannot be stretched to authorise orders under s 19B of the Crimes Act 1914.
  • A person who has been charged and subsequently convicted does not cease to be a person "charged" for the purposes of ss 19B and 20BQ if the conviction is later set aside on appeal.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 3(3A), 11(1), 12(1), 20(1), 28(2)
- Crimes Act 1914 (Cth), ss 19B, 20BQ
- Criminal Code (Cth), s 135.2(1)
- Judiciary Act 1903 (Cth), ss 68, 79
- Mental Health (Forensic Provisions) Act 1990 (NSW), former s 32
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10
- Criminal Appeal Act 1912 (NSW), s 5B
- District Court Act 1973 (NSW)
- Criminal Procedure Act 1986 (NSW)

Key Cases
- John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65
- Putland v The Queen (2004) 218 CLR 174
- Kruger v The Commonwealth (1997) 190 CLR 1
- ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559
- Rizeq v Western Australia (2017) 262 CLR 1
- Commissioner of Stamp Duties (NSW) v Owens [No 2] (1953) 88 CLR 168
- Charara v The Queen [2006] NSWCCA 244
- Hildebrand v R [2021] NSWCCA 9
- Director of Public Prosecutions (NSW) v Hamzy [