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Supreme Court 28 July 2022

Application by Christopher Cranney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW)

[2022] NSWSC 1005

Fraud & dishonesty
CRIMINAL LAW GENERAL PRINCIPLES JURISDICTION [2021] NSWCA 297 NO POWER TO DETERMINE APPLICATION APPLICATION DISMISSED

Citation: Application by Christopher Cranney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2022] NSWSC 1005
Court: Supreme Court of New South Wales
Date: 28 July 2022
Judge(s): Walton J

Background

The applicant, a former Australian Customs and Border Control Service Officer, was convicted by a jury in the District Court of New South Wales in 2015 on three counts: conspiracy to import a border controlled precursor (pseudoephedrine) in a commercial quantity, and two counts of dishonestly agreeing to receive a benefit as a Commonwealth public official. All three offences were charged under Commonwealth legislation, specifically the Criminal Code 1995 (Cth). He was sentenced to 14 years imprisonment with a non-parole period of 8 years and 9 months.

The applicant and his co-accused appealed their convictions to the Court of Criminal Appeal, which dismissed the appeal in 2017. There was no appeal on sentence. The applicant then sought a further review of his convictions by filing an application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) in February 2021.

The Commonwealth Attorney-General filed submissions opposing the application, contending that the NSW Court of Appeal's decision in Huynh v Attorney General (NSW) [2021] NSWCA 297 had removed the Supreme Court's jurisdiction to consider applications of this kind where the underlying convictions were for Commonwealth offences only.

  • Whether the Supreme Court of New South Wales has jurisdiction under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) to consider an application for inquiry into convictions for offences against Commonwealth law.
  • Whether the Court of Appeal's decision in Huynh v Attorney General (NSW) was binding and directly applicable to this application.
  • Whether the pending High Court appeal in Huynh affected the Court's obligation to follow the Court of Appeal's ruling.

Decision

Walton J held that the Supreme Court had no jurisdiction to consider the application. The key authority was the Court of Appeal's decision in Huynh, which established that the power conferred by s 79 of the Act is not available with respect to a conviction or sentence for an offence against a law of the Commonwealth, even where the trial was heard and determined in a New South Wales court. The power under that section is exercised by a judge as a persona designata (meaning in a personal statutory capacity, not as a judicial officer exercising judicial power), and that non-judicial power does not extend to Commonwealth offences.

Because all three of the applicant's convictions were for offences under the Criminal Code 1995 (Cth), the Huynh holding applied directly. Walton J expressly declined to consider or comment on the merits of the application, as the absence of jurisdiction made it unnecessary and inappropriate to do so.

Walton J acknowledged that special leave to appeal the Huynh decision had been granted by the High Court. His Honour noted that if the High Court overturns Huynh, the applicant's application could potentially be reactivated using the material already filed. However, until that occurs, the Court is bound by the Court of Appeal's decision as the current statement of the law.

Orders Made

  • The application filed on 11 February 2021 pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) is dismissed for want of jurisdiction.

Key Takeaways

  • Under the Court of Appeal's decision in Huynh v Attorney General (NSW) [2021] NSWCA 297, the power conferred by s 79 of the Crimes (Appeal and Review) Act 2001 (NSW) does not extend to convictions or sentences for offences against Commonwealth law, even where those offences were tried in a New South Wales court.
  • A judge of the Supreme Court exercising functions under ss 78 and 79 of the Act does so as a persona designata, exercising an administrative (not judicial) power, and that power is confined to State offences in these circumstances.
  • The proceedings under s 79 of the Act are not judicial proceedings; they represent an administrative mechanism and are not intended to provide a further avenue of appeal once ordinary appeal rights are exhausted.
  • Where a binding Court of Appeal decision removes jurisdiction, a single judge of the Supreme Court is obliged to follow it regardless of any view about its underlying reasoning, pending any determination by a higher court.
  • Dismissal for want of jurisdiction does not preclude future reconsideration: Walton J observed that if the High Court overturns Huynh, the applicant's existing filed material could potentially form the basis for reactivating the application.

Legislation and Cases Referenced

Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Code 1995 (Cth), ss 11.5, 141.1, 307.11
- Judiciary Act 1903 (Cth), ss 68, 79

Cases:
- Huynh v Attorney General (NSW) (2021) 396 ALR 422; [2021] NSWCA 297
- Attorney-General (Cth) v Huynh [2022] HCATrans 91
- Cranney v R; Huynh v R [2017] NSWCCA 234
- R v Christopher Phillip Cranney; R v Huy Bao Van Huynh [2015] NSWDC 276
- Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251
- Potier: Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2018] NSWSC 768
- Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383
- Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166