Attorney-General (Cth) v Huynh

• Jurisdiction: Australia Federal only
• Judge: Kiefel CJ,Gageler,Gleeson JJ,Gordon,Steward JJ,Edelman J.,Jagot J.
• Judgment Date: 10 May 2023
• Neutral Citation: [2023] HCA 13
• Year: 2023
• Court: High Court
• Docket Number: S78/2022

[2023] HCA 13

HIGH COURT OF AUSTRALIA

Kiefel CJ, Gageler, Gordon, Edelman, Steward Gleeson and Jagot JJ

S78/2022

Attorney-General (Cth)

Appellant

and

Huy Huynh & Ors

Respondents

Representation

S P Donaghue KC, Solicitor-General of the Commonwealth, with T M Glover and C Ernst for the appellant (instructed by Australian Government Solicitor)

R J Wilson SC with D J Reynolds for the first respondent (instructed by Legal Aid (NSW))

G A Hill SC with J S Stellios, appearing as amici curiae (instructed by Australian Government Solicitor)

R J Orr KC, Solicitor-General for the State of Victoria, with T M Wood for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)

Submitting appearances for the second and third respondents

Constitution, ss 51(xxxix), 76(ii), 77(iii).

Crimes (Appeal and Review) Act 2001 (NSW), ss 75, 77, 78, 79, 81, 82, 85, 86, 88, 114.

Criminal Appeal Act 1912 (NSW), s 5.

Interpretation Act 1987 (NSW), ss 12, 15.

Judiciary Act 1903 (Cth), ss 68, 79.

Constitutional law (Cth) — Judicial power of Commonwealth — Jurisdiction vested in State courts — State laws applicable to offenders convicted of Commonwealth offences — Where s 78(1) of Crimes (Appeal and Review) Act 2001 (NSW) (“CAR Act”) permitted convicted person to apply to Supreme Court of New South Wales for inquiry into conviction or sentence — Where s 79(1)(a) of CAR Act permitted judge to direct an inquiry take place — Where s 79(1)(b) of CAR Act permitted judge to refer whole case to Court of Criminal Appeal to be dealt with as an appeal — Where convicted person applying under s 78(1) was convicted of Commonwealth offence — Whether ss 78 and 79 applied of own force to person convicted of Commonwealth offence — Whether s 68(1) of Judiciary Act 1903 (Cth) operated to apply ss 78(1), 79(1)(a) and 79(1)(b) of CAR Act to person convicted of Commonwealth offence — Whether ss 78(1) and 79(1)(b) of CAR Act could be applied independently of s 79(1)(a) without different legal operation — Whether ss 78(1) and 79(1)(b) of CAR Act impermissibly conferred on judge of State court acting in personal capacity a function without their consent — Whether ss 78(1) and 79(1)(b) of CAR Act impermissibly imposed administrative duty on holder of State statutory office without State legislative approval.

Words and phrases — “altered meaning”, “Chief Justice or authorised judge”, “Commonwealth offence”, “different legal operation”, “federal jurisdiction”, “federal offence”, “inquiry into conviction or sentence”, “judicial power”, “jurisdiction invested”, “jurisdiction of State and Territory courts”, “jurisdiction of the Supreme Court”, “like jurisdiction”, “non-judicial power”, “persona designata”, “pick up and apply”, “prerogative of mercy”, “referral to Court of Criminal Appeal”, “severance”.

ORDER

• 1. Appeal allowed.

• 2. Set aside the orders made by the Court of Appeal of the Supreme Court of New South Wales on 8 December 2021.

• 3. Remit the matter to the Court of Appeal for the hearing and determination of the further amended summons in accordance with the judgment of this Court.

On appeal from the Supreme Court of New South Wales

1 Kiefel CJ, Gageler AND Gleeson JJ. Mr Huynh was convicted and sentenced to a term of imprisonment following a trial on indictment in the District Court of New South Wales for an offence under ss 11.5(1) and 307.11(1) of the Criminal Code (Cth). He appealed against the conviction to the Court of Criminal Appeal of the Supreme Court of New South Wales pursuant to s 5 of the Criminal Appeal Act 1912 (NSW) as applied by force of s 68(1) and (2) of the Judiciary Act 1903 (Cth). The Court of Criminal Appeal dismissed the appeal 1.

2 Mr Huynh subsequently applied to the Supreme Court of New South Wales pursuant to s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (“the CAR Act”) for an inquiry into the conviction. By that application, he sought to obtain an order under s 79(1)(b) of the CAR Act referring the whole of his case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act. The application was considered and dismissed on its merits by Garling J 2.

3 Mr Huynh then applied by originating summons in the Court of Appeal of the Supreme Court of New South Wales for judicial review of the decision of Garling J pursuant to s 69 of the Supreme Court Act 1970 (NSW). The respondents to the application for judicial review were the Attorneys-General of New South Wales and the Commonwealth and the Supreme Court of New South Wales.

4 On the hearing of the application for judicial review, the Court of Appeal itself raised a preliminary issue. The issue was whether ss 78(1) and 79(1) of the CAR Act apply to a conviction by a New South Wales court for an offence under a law of the Commonwealth, either of their own force or by force of s 68(1) of the Judiciary Act. In a considered judgment 3, the Court of Appeal held by majority (Bathurst CJ, Basten, Gleeson and Payne JJA) that they do not. The dissentient (Leeming JA) took the view that they apply of their own force.

5 The holding of the majority resulted in the Court of Appeal making orders declaring the decision of Garling J to be void for want of jurisdiction and dismissing the originating summons for judicial review without the majority reaching the grounds of review sought to be raised by Mr Huynh.

6 On appeal by special leave to this Court, the Attorney-General of the Commonwealth argues with the support of Mr Huynh that the majority in the Court of Appeal was wrong to hold that ss 78(1) and 79(1) of the CAR Act do not apply to a conviction by a New South Wales court for an offence under a law of the Commonwealth.

7 The Attorney-General of New South Wales, although a party to the appeal, has chosen not to participate in its hearing. The Attorney-General of Victoria has intervened under s 78A of the Judiciary Act to raise a narrow and discrete constitutional issue consideration of which can be deferred until the end of these reasons. In the absence of any other contradictor 4, Mr Hill SC and Mr Stellios have been appointed amici curiae. In that capacity, they have presented argument responding to that of the Attorney-General of the Commonwealth and of Mr Huynh.

8 For the reasons which follow, ss 78(1) and 79(1) of the CAR Act do not apply of their own force to a conviction by a New South Wales court for an offence under a law of the Commonwealth, but ss 78(1) and 79(1)(b) are applied to such a conviction by force of s 68(1) of the Judiciary Act.

9 The outcome of the appeal by the Attorney-General of the Commonwealth is therefore that the appeal will be allowed, that the orders made by the Court of Appeal will be set aside, and that the matter will be remitted to the Court of Appeal for the hearing and determination of Mr Huynh's application for judicial review of the decision of Garling J.

The CAR Act

10 Part 7 of the CAR Act is framed against the background that a conviction and sentence following a trial on indictment constitute the conclusive determination of criminal liability, subject only to an appeal under s 5 of the Criminal Appeal Act 5, and that the Court of Criminal Appeal has no jurisdiction to reopen an appeal under s 5 of the Criminal Appeal Act which it has heard and finally determined 6.

11 Part 7 is headed “Review of convictions and sentences”. Division 2 of that Part is headed “Petitions to Governor”. Although Div 2 does not arise directly for consideration in the appeal, its provisions have contextual relevance. Section 76 allows for a petition for review of a conviction or sentence or the exercise of the Governor's pardoning power to be made to the Governor by or on behalf of the convicted person. Under s 77(1)(b), after the consideration of a petition, the Attorney-General is empowered to refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act. The consequence of a reference under s 77(1)(b) is to enliven jurisdiction separately conferred on the Court of Criminal Appeal by s 86, which is within Div 5 of Pt 7 of the CAR Act.

12 Sections 78 and 79 are in Div 3, which is headed “Applications to Supreme Court”.

13 Section 78 provides:

• “(1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person.

• (2) The registrar of the Criminal Division of the Supreme Court must cause a copy of any application made under this section to be given to the Minister.”

14 Section 79 provides:

• “(1) 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.

• (2) 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.

• (3) 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...