CRIMINAL LAW - application under s 78 of the Crimes (Appeal and Review) Act 2001 - general principles - jurisdiction - power to consider application for inquiry - where offender was convicted and sentenced for only offences against a law of the Commonwealth - Huynh v Attorney General
Huynh v R [2017] NSWCCA 234
Huynh v Attorney General (NSW) (2021) 396 ALR 422
R v Huy Bao Van Huynh [2015] NSWDC 276
Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783
Source
Original judgment source is linked above.
Catchwords
Huynh v R [2017] NSWCCA 234
Huynh v Attorney General (NSW) (2021) 396 ALR 422R v Huy Bao Van Huynh [2015] NSWDC 276
Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783
Judgment (6 paragraphs)
[1]
Solicitors:
B Sheens (Applicant's contact person)
Australian Attorney-General's Department (Respondent)
File Number(s): 2021/00041280
[2]
Introduction and Factual Background
By an application filed on 11 February 2021, the applicant, Mr Christopher Cranney, seeks, pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act), an inquiry with respect to three convictions for offences under Commonwealth law.
On 13 April 2015, the applicant was charged with five counts. A trial was conducted in the District Court of New South Wales by a jury between 13 April and 9 June 2015.
The jury returned not guilty verdicts for counts 1 and 3. The jury returned guilty verdicts for counts 2, 4 and 5. Count 2 was a breach of ss 11.5(1) and 307.11(1) of the Criminal Code 1995 (Cth) (Criminal Code). The indictment for count 2 was as follows:
"2 Between about 1 January 2012 and about 30 June 2012, at Sydney, in the State of New South Wales, did conspire with Adrian Lamella, Paul Valsamakis, David Harb, Bruno Napoli, Sarmarn Prom, Marlon Hikaiti-Paul, Levi Ratahi, Wayan Erlambang, Sebastian Musa, Peter Garcia and divers others, to import a substance, intending to use or believing that another person intended to use any of the substance to manufacture a controlled drug, the substance being a border controlled precursor, namely pseudoephedrine, and the quantity imported being a commercial quantity."
The fourth and fifth counts were in breach of s 141.1(3) of the Criminal Code. The indictment provided as follows for the two counts:
"4 Between 1 January 2012 and about 31 March 2012 at Sydney in the State of New South Wales being a Commonwealth public official, namely an Australian Customs and Border Control Service Officer, dishonestly agreed to receive or obtain a benefit for himself, namely money, with the intention that the exercise of his duties as a Commonwealth public official would be influenced.
5 Between 1 April 2012 and about 30 June 2012 at Sydney in the State of New South Wales being a Commonwealth public official, namely an Australian Customs and Border Control Service Officer, dishonestly agreed to receive or obtain a benefit for himself, namely money, with the intention that the exercise of his duties as a Commonwealth public official would be influenced."
The applicant was sentenced to a term of imprisonment of 14 years, with a non-parole period of 8 years 9 months, commencing 12 May 2014: R v Christopher Phillip Cranney; R v Huy Bao Van Huynh [2015] NSWDC 276.
The applicant and his co-accused, Mr Huy Huynh, appealed against their convictions pursuant to s 5 of the Criminal Appeal Act 1912 (NSW). The Court of Criminal Appeal dismissed the appeal: Cranney v R; Huynh v R [2017] NSWCCA 234. There was no appeal on sentence.
The applicant applied for review of the convictions pursuant to s 78 of the Act. On 11 February 2022, the applicant filed two documents titled "Affidavit", although much of the content can better be described as written submissions.
Section 78(2) of the Act requires that the Registrar of the Criminal Division of the Supreme Court cause a copy of the application to be given to the Attorney General for New South Wales.
On 28 April 2021, the Crown Solicitor for New South Wales sent a communication to the Registrar indicating that she formed the view that the Attorney General for New South Wales is not the proper respondent in this matter, and that the proper respondent is the Crown in right of the Commonwealth, who brought the charges against the applicant. The Crown Solicitor had directed the matter to the Australian Attorney-General's Department.
On 16 June 2021, the Attorney-General of the Commonwealth filed written submissions to the effect that the application should be refused.
On 22 June 2021, the applicant filed a document titled "Criminal Appeal Review (CAR) Response", which essentially contained written submissions in reply to the Attorney-General's submissions.
On 9 December 2021, the legal representatives for the Attorney-General of the Commonwealth sent a communication to the Registrar noting that the Court of Appeal had handed down its decision in Huynh v Attorney General (NSW) (2021) 396 ALR 422; [2021] NSWCA 297 (Huynh) one day earlier. The letter stated:
"We note that the Applicant in this matter has been convicted of federal offences only and has made an application under s 78 of the Act.
In the Commonwealth Attorney-General's view, the effect of the Court of Appeal's decision is that there is no longer jurisdiction for a Judge of the Supreme Court to consider and determine Mr Cranney's application.
We understand that Mr Cranney is self-represented in this matter and will arrange for a copy of this correspondence to be served on the Applicant in custody."
On 24 January 2022, the Registrar received a communication from Ms Brook Sheens, who the applicant had requested to be copied in correspondence. Ms Sheens said that:
"[T]he Huynh matter Huynh [v] Attorney General 2021/NSWCA297 has not settled and is still on appeal, therefore [the applicant's] matter still has merit and must still be before the Court as the matters are attached to each other."
[3]
Principles Relating to Sections 78 and 79 of the Act
The relevant legislative provisions are ss 78 and 79 of the Act, which is under Pt 7 of that Act. Section 78(1) provides:
"78 Applications to Supreme Court
(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."
Section 79 provides:
"79 Consideration of applications
(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 subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and
(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.
…
(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application."
The power conferred by s 79 of the Act is to be exercised by the Chief Justice or Judge of the Supreme Court as persona designate exercising administrative power, not as a judicial officer of the court exercising judicial power, and that non-judicial power is not incidental to the exercise of judicial power: Huynh at 432 [39], 444 [83] (Basten JA with whom Bathurst CJ and Gleeson JA agreeing), 487-488 [265]-[269] (Payne JA).
In Potier - Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2018] NSWSC 768 (Potier), I described the nature of an application under ss 78 and 79 of the Act as follows:
"10. … Although the Court's administrative function may be activated when the criminal justice systems runs its course, the procedure is not intended to provide a convicted person with yet another avenue of appeal after the usual avenues have been exhausted. Nor is it an opportunity to run the trial again on paper, with the ultimate submission that acquittal should result (Holland at [9]-[10]).
11. Section 79(1) provides that the Court may either direct an inquiry by a judicial officer or refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal. This power is only enlivened, as stated above: "if it appears that there is doubt or question as to the 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" (s 79(2))."
The test to be applied in determining an application pursuant to s 78 was set out by Johnson J in Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 (Holland). His Honour stated, at [6], that:
"The test is whether it appears that there is a doubt or question as to guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case: s.79(2). With respect to repealed s.475 Crimes Act 1900 (which used similar words), it was said that this view may be formed where the material causes the person considering the matter unease or a sense of disquiet in allowing the conviction or sentence to stand: Varley v Attorney General (NSW) at 48; Application of Rendell (1987) 32 A Crim R 243 at 245. This formula has been applied since the repeal of s.475 and its replacement by the provisions now contained in s.79(2): Application of Pedrana (2000) 117 A Crim R 45 at 463 [28]; Application of Suey [2001] NSWSC 543 at [18]."
Justice Johnson elaborated on what constitutes a "doubt or question as to guilt" as follows:
"7 Where it is contended that a doubt or question exists concerning part of the evidence in the case, it is appropriate to consider whether any doubt or question about that part of the evidence produces a doubt or question as to guilt: Application of Moore (2000) 112 A Crim R 331 at 332 [6]. The section is to apply to a part of the evidence which has some real material substance as effecting the conclusion of guilt: Application of Suey at [19].
8 There has to be available material which, as a matter of practical reality, gives rise to a relevant sense of unease or disquiet: Application of Esposito (Hunt J, 14 July 1988, unreported at page 2); Application of Visser (Newman J, 27 June 1994, BC9402667 at page 3); Application of Dunn [2005] NSWSC 857 at [9]."
It should be noted that since the judgment of Johnson J in Holland, the Court of Appeal has eschewed reliance on language such as "unease or disquiet" when considering the test in s 79(2) of the Act. In Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 (Sinkovic), Basten JA (with whom Bathurst CJ, Beazley P, as Her Excellency then was, Price and Beech-Jones JJ, as his Honour then was, agreed) stated at 799 [65]:
"This language does not assist. There is no purpose served by adopting other words than the statutory language of 'doubt or question'"
In Potier, I summarised the relevant authorities on the construction of s 79 of the Act at [13]-[14] as follows:
"13. In GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 Simpson JA, provides assistance as to appropriate construction of s 79 at [62]-[66]:
[62] To reiterate, by s 79 of the CAR Act, the Supreme Court may direct that an inquiry be conducted into a conviction or sentence, (or may refer "the whole case" to the Court of Criminal Appeal) if (and only if) it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstance in the case, or as to any part of the evidence in the case. The task is not a composite one; it is tripartite. The section potentially calls for attention to three discrete and distinct issues. (I say "potentially" because not each issue will call for attention in each case. What is called for will depend upon the circumstances of the individual case.) There remain, however, three components to s 79, each of which is, as I have said, separate and distinct and needs, where it arises, to be addressed separately from the others. The three components are (in the sequence stated in the legislation):
- the guilt of the convicted person;
- any mitigating circumstances in the case; and
- any part of the evidence in the case.
In Sinkovich (at [27]) Basten JA also pointed out the tripartite nature of the exercise prescribed by s 29(4).
[63] The second of the three heads prescribed for inquiry is peculiarly related to questions of sentence and can for present purposes be put to one side. The first and third relate to conviction, although the third could also relate to sentence.
[64] In Sinkovich, Basten JA (with whom Bathurst CJ, Beazley P, and Price and Beech-Jones JJ agreed) likened the "overriding purpose" of Pt 7 to:
"… the high value placed on freedom of the individual and the unwillingness to allow that liberty to be infringed because of commission of a criminal offence unless the offence has been established beyond reasonable doubt …" (at [52])
He added (reviewing the long history of the Pt 7 provisions and their predecessors) that:
"… the need for a mechanism to resolve doubts or questions as to the soundness of a conviction or sentence, so as to avoid an unremediable miscarriage of justice, called for statutory intervention."
[65] To that I would add that the inclusion of "any part of the evidence" in the trio of issues that could warrant the further investigation of a conviction by inquiry or appeal reflects the importance placed by the criminal justice system on, not only the outcome of criminal proceedings, but the integrity of the process by which the outcome is reached. The legislature could have, but expressly did not, confine the circumstances that might give rise to further investigation of a conviction to doubts or questions about the guilt of the convicted person.
[66] That there appears to the judge to be a doubt or question about any part of the evidence is sufficient to warrant directing an inquiry or referring the case to the Court of Criminal Appeal, even if it is unlikely that the evidence in question was determinative (although the importance of the evidence, as well as the extent of any concerns about its integrity, may well be relevant to the exercise of the discretion to take one of the steps provided by s 79(2)).
14. The demands of the test required by s 79(2) were also succinctly summarised by Payne JA at [137]-[139] (citing the judgment of Basten JA in Sinkovich):
[137] … First, that test is not a demanding one. I agree with Basten JA that the task is to be approached with a view to the overriding purpose of providing a means to address doubts as to compliance with the principle that liberty should only be infringed upon the commission of a criminal offence if commission of the offence has been established beyond reasonable doubt.
[138] Secondly, the "doubt" or "question" the Supreme Court must harbour is one that applies to the finding of the applicant's guilt, as to any mitigating circumstances in the case or to any part of the evidence in the case. The breadth of those matters, where a "doubt" or "question" which enlivens the powers in s 79(1) may arise, tends to highlight the fact that no limitations should readily be implied into the statutory test.
[139] Thirdly, the fact that the gatekeeper to either of the inquires provided for by s 79 is the Supreme Court itself emphasises the importance of the role and ensures, as Basten JA explained at [53] in Sinkovich, that it is exercised "responsibly and, no doubt, sparingly". Some matters relevant to the exercise of that gatekeeper role are identified in s 79(3) in the breadth of the considerations which may properly lead the Supreme Court to refuse to consider or otherwise deal with an application. Section 79(3)(b), in allowing for cases where the Supreme Court is "not satisfied that there are special facts or special circumstances that justify the taking of further action", throws further light on the breadth of the matters which may be taken into account in exercising this gatekeeper role."
[4]
Jurisdiction to Determine this Application
It is necessary for a decision-maker, before proceeding to exercise a power, that they are satisfied that the law confers upon them jurisdiction to exercise that power.
In Huynh, a majority of the Court of Appeal held that s 79 of the Act is 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 is because neither a State court nor an officer of the State have power under State law to vary or affect the conviction of a person for an offence under a law of the Commonwealth, unless authority is conferred by a law of the Commonwealth.
The majority held that as s 79 of the Act confers non-judicial power on the Chief Justice or Judge of the Supreme Court, ss 68(1) or 79 of the Judiciary Act 1903 (Cth) does not have the effect of adopting and applying Pt 7 of the Act to federal offences. No other law of the Commonwealth purports to apply the provisions in s 79 of the Act to federal offences.
The majority also noted that a Commonwealth law cannot, at least without the consent of the relevant judicial officer, impose an administrative function on a Judge of a State Supreme Court. No such consent is facilitated under a legislative provision nor has consent been formally sought or provided.
Accordingly, the Court of Appeal made the following declaration:
"(1) Declare that the power conferred by s 79 of the Crimes (Appeal and Review) Act 2001 (NSW):
(a) is to be exercised by the Chief Justice or a judge of the Court authorised by the Chief Justice as a persona designata;
(b) is 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."
The holding by the majority in Huynh is directly on point to this application. Like Mr Huynh in that case, the applicant here was charged and convicted with only offences against the Criminal Code, which is a law of the Commonwealth Parliament. It follows that, in these circumstances, there is no power to determine the merits of the application. It is, therefore, not necessary, nor in my view appropriate, to consider or otherwise deal with the application. I make no comment on the merits of the application.
Ms Sheens noted that Huynh is currently the subject of a High Court appeal. Special leave to appeal has been granted by the High Court from the Court of Appeal's decision: Attorney-General (Cth) v Huynh [2022] HCATrans 91. If Huynh is overturned by the High Court or a later Court of Appeal, then the applicant's application may potentially be the subject of further consideration or could be reactivated by a letter incorporating the material already provided: Sinkovic at 802 [77] (Basten JA with whom Bathurst CJ, Beazley P, as Her Excellency then was, Price and Beech-Jones JJ, as his Honour then was, agreed).
But unless that occurs, I am bound to follow the Court of Appeal's decision in Huynh because it represents current law. This was made clear by Moffitt P in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 177 when his Honour said:
"The obligation of every court loyally to follow decisions of any court superior to it has been often stated. At times it may appear to a judge or to an appeal court that the reasoning or absence of it in a binding decision renders that decision unsatisfactory. However, the law concerning precedent, based as it is on the need for certainty in the law, absolutely binds him to follow the precedent. He is as much bound by the law of precedent and the law so pronounced as he is by any other law."
[5]
Decision
Accordingly, the application of Christopher Cranney filed on 11 February 2021 pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) is dismissed for want of jurisdiction.
[6]
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Decision last updated: 04 August 2022
Parties
Applicant/Plaintiff:
CRIMINAL LAW - application under s 78 of the Crimes (Appeal and Review) Act 2001 - general principles - jurisdiction - power to consider application for inquiry - where offender was convicted and sentenced for only offences against a law of the Commonwealth - Huynh