Huynh v Attorney General

JUDGMENT

1. THE COURT: These proceedings concern an application brought by Mr Huy Huynh (the Applicant) for judicial review of the decision of Garling J, made in a non-judicial capacity, to dismiss his application for a post-appeal inquiry under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act): Application of Huy Huynh under Part 7 of the Crimes (Appeal and Review) Act 2001 for an Inquiry [2020] NSWSC 1356 (the Part 7 decision).
2. That decision followed the Applicant's original conviction, on 9 June 2015, for an offence of conspiracy to import a commercial quantity of a border controlled precursor (pseudoephedrine) with the intention that the substance would be used to manufacture a controlled drug, pursuant to ss 11.5(1) and 307.11(1) of the Criminal Code Act 1995 (Cth) (Criminal Code). Although there was one charge of conspiracy, it related to two importations, one in March and one in June 2012. The formation of the conspiratorial agreement necessarily predated the two acts of importation relied upon.
3. The Applicant and his co-conspirator, Mr Christopher Cranney (Cranney), were jointly charged on the same indictment in the following terms: "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."
4. On 20 November 2015, the Applicant was sentenced to 12 years imprisonment with a non-parole period of 8 years commencing on 1 August 2014 and expiring on 31 July 2022: R v Cranney; R v Huynh [2015] NSWDC 276.
5. Following a successful appeal against sentence in the Court of Criminal Appeal, the Applicant was resentenced to 12 years imprisonment with a non-parole period of 8 years which commenced on 20 June 2014 and expired on 19 June 2022: Huynh v R [2022] NSWCCA 45.
6. On 29 September 2017, the Court of Criminal Appeal (Price J, with whom Latham J and Hoeben CJ at CL agreed) dismissed an appeal lodged by the Applicant together with Mr Cranney from their convictions: Cranney v R; Huynh v R [2017] NSWCCA 234; (2017) 269 A Crim R 449. The Applicant represented himself before the Court of Criminal Appeal but had the benefit of written submissions prepared on his behalf by Mr Dhanji SC (as his Honour then was). He had also had legal representation at trial. As summarised by Garling J at [23], the Court of Criminal Appeal: "found that the Crown had made its case of a single conspiracy clear throughout the trial, that there was strong evidence at trial that a single agreement governed the actions of the conspirators, that those actions had a common purpose and a common design which remained largely unchanged across different importations, and that the entry or departure of parties to the conspiracy (e.g. couriers) did not disprove the existence of the conspiracy. His Honour found that it was open to the jury to find both the March and the June importations in 2012 were carried out as part of the broad single conspiracy alleged by the Crown."
7. The Court of Criminal Appeal rejected an unreasonable verdict ground of appeal which necessarily involved an independent assessment of the whole of the evidence. Special leave to appeal to the High Court of Australia was refused: Huynh v The Queen [2019] HCASL 6.
8. The Applicant then brought his application for a post-appeal inquiry pursuant to ss 78 and 79 of the CAR Act which relevantly provide: "78 Applications to Supreme Court 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. ... 79 Consideration of applications (1) After considering an application under section 78 or on its own motion, the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or 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 … (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."
9. In his Part 7 decision, Garling J noted that: "[11] The pre-condition for the exercise of these powers is the appearance of a "doubt or question" regarding one (or more) of three things: guilt, any mitigating circumstances in the case, or any part of the evidence in the case. This precondition will be satisfied if there is available material which causes the decision-maker "... unease or a sense of disquiet in allowing the conviction or sentence to stand": Holland at [6]. [12] As Johnson J said in Holland at [10], applications under s 78 of the Act "in almost every case, [arise] where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence". [13] I note that in this application, no such additional evidence is relied upon. Whilst this does not preclude the Court from exercising the powers under ss 78 and 79 of the Act, it does mean that the Court must be conscious to ensure that the process is not being used as another form of appeal. In this matter, the applicant must show that, based on material that has already made its way through the criminal justice system, his application gives rise to a relevant sense of unease or disquiet which needs to be one that was not considered or dealt with in his trial or on his appeal. This is a high bar. This is not an opportunity to run the trial again on paper, with the ultimate submission that an acquittal should result: Holland at [9]." (Emphasis in original.)
10. Later in his reasons, his Honour observed that: "[37] On my review of the evidence, it is plain that no miscarriage of justice was occasioned by a single charge of one conspiracy. It was open to the Crown to charge a single offence and open to the jury to convict on the evidence. There appears to be no evidence of or any compelling reason why the two separate importations would properly be regarded as separate conspiracies. Many of the conspirators remained constant across each importation and the modus operandi of the conspirators remained the same. In short, they were distinct but similar importations carried out as part of the same agreement. [38] … The June importation used a similar modus operandi to the March importation and was an importation of the same substance and involved similar conspirators. It is obvious to me that it was in furtherance of the same ultimate goal as the March importation. In my view it was open to, and correct for, the jury to find the June importation was part of the same single conspiracy as the March importation, and that both importations were undertaken under the same agreement."
11. Garling J concluded that: "[53] The applicant has done no more than raise issues that he has raised previously on appeal. [54] An application under s 78 is not to be approached by this Court, acting in an administrative capacity, as another Court of Appeal. When faced with an application that does no more than restate submissions raised in the proceedings and on appeal, it is open to me to refuse to consider the application: s 79(3) of the Act. [55] This was plainly an available course for the disposal of this application. However, I have chosen to examine the applicant's submissions and all of the relevant material. Having done so, and having considered the issues substantively, I have no sense of unease or doubt as to the applicant's guilt."
12. His Honour's conclusion was consistent with the decision of the Court of Criminal Appeal which rejected the Applicant's unreasonable verdict ground of appeal, following an independent review of the whole of the evidence.
13. Following Garling J's decision, the Applicant sought judicial review in this Court. The Application for judicial review was initially dismissed on the basis that no jurisdiction existed because of the federal nature of the underlying offence. A successful appeal to the High Court followed (Attorney-General (Cth) v Huynh [2023] HCA 13; (2023) 97 ALJR 298) and the matter was remitted to this Court. A complex procedural issue then arose and was determined earlier this year: Huynh v Attorney General (NSW) [2023] NSWCA 190.
14. In this hearing, the Court has arrived at the substance of the Applicant's judicial review application. The Applicant represented himself, Mr T Glover appeared with Ms H Robinson for the Attorney-General of the Commonwealth, and Ms Z Heger appeared with Mr J Birrell for the Attorney General of New South Wales.

Grounds of review

1. By way of his Amended Summons filed on 14 June 2023, the Applicant relied on the following Grounds of Review: "1. Error of jurisdiction on the part of Garling J as his Honour exercised a power that was not open to him by determining the outcome of legal questions that were submitted in the applicant's section 78 application as his Honour was performing an administrative task and was not acting in a judicial capacity as per s 79(4). 2. Error of law as Garling J's reasons for decision did not apply the relevant principles with respect to the applicant's defence not being put to the jury and his honour also did not apply the relevant principles as to how a conspiratorial agreement is properly proven when addressing the issues the applicant raised in the s 78 application."
2. Contained in the Amended Summons was a section headed "Statement of Grounds" arranged under 5 subheadings which went beyond the two identified Grounds of Review. These were: 1. "Whether the summing up resulted in a miscarriage of justice as defence for June offences not put to the jury"; 2. "Separate defences"; 3. "Error of jurisdiction"; 4. "The decision was unreasonable"; and 5. "Abuse of process for unfairness".
3. These subheadings, other than the last, were replicated in written submissions filed on behalf of the Applicant. The "Abuse of process" complained of in the Amended Summons was in essence a complaint that the Crown had formulated its case as a single conspiracy when there were two discrete acts of criminality, namely the March and June importations. This procedure was said to be oppressive. In oral submissions, we understood the Applicant not to press any complaint in this respect, or on the basis that there was illegitimate duplicity. This is a matter that had been dealt with by the Court of Criminal Appeal and resolved against the Applicant. It was also dealt with by Garling J who at [43] held that: "Each argument advanced by the applicant on this point relies on my having a doubt as to whether the March and June importations were a single conspiracy. That is to say, each argument rests on the idea that they should have been charged as separate offences. I am not convinced of this argument. I have no doubt that a single conspiracy charge was appropriate."
4. It is convenient first to deal with the Applicant's argument based upon an alleged error of jurisdiction.

Error of jurisdiction

1. The essence of the Applicant's complaint is that Garling J "determin[ed] the outcome of legal questions that were submitted in the applicant's section 78 application" when he was performing an administrative and not judicial task.
2. The particular legal questions to which the Applicant was referring were not isolated with clarity in the Applicant's written or oral submissions but that matter can be put to one side because the asserted "error of jurisdiction" was misconceived. Apart from the fact that the Applicant now apparently complains that Garling J decided legal questions that the Applicant himself submitted as part of the s 78 application, it is not the case that a judge acting persona designata and performing an administrative function may not determine legal questions, and that it is beyond his or her jurisdiction to do so. The point has been addressed most recently by Kirk JA in Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191 where his Honour said: "[77] …Administrative schemes commonly involve decision-makers determining facts and considering and applying statutory criteria: Federal Cmr of Taxation v Munro (1926) 38 CLR 153 at 176 -179; [1926] HCA 58; Luton at [66]; Alinta at [161]. Creating such schemes and criteria is one of the main means by which the Parliament directs and controls the executive. Administering them may involve assessment of legal rights and duties. As the High Court said in Precision Data (at 189, citation omitted): although the finding of facts and the making of value judgments, even the formation of an opinion as to the legal rights and obligations of parties, are common ingredients in the exercise of judicial power, they may also be elements in the exercise of administrative and legislative power. [78] Even the determination "whether a person has engaged in conduct that constitutes a criminal offence as a step in the decision to take disciplinary or other action" is not necessarily judicial: Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 at [33]. Thus, insofar as the legislative scheme involves consideration of legal rights and duties, that does not require that the scheme be characterised as involving the exercise of judicial power."
3. A judge considering whether "there is a doubt or question as to the convicted person's guilt" within the meaning of s 79 of the CAR Act may need to consider questions of law in the course of his or her consideration. To do so is well within jurisdiction and does not amount to jurisdictional error.
4. As the Attorney-General for the Commonwealth submitted, "it is both common and appropriate for administrative decision-makers to ascertain the law by reference to case law", citing Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 149; [1987] HCA 29 (Cram) per Mason CJ, Brennan, Deane, Dawson and Toohey JJ citing, eg, R v Commonwealth Industrial Court; Ex parte The Australian Coal and Shale Employees' Federation (1960) 103 CLR 171 at 174; [1960] HCA 71. In Cram, in holding that the formation of views and opinions on matters of interpretation in arbitral proceedings did not in itself amount to a usurpation of judicial power, their Honours said that: "there is no substance in the suggestion that an industrial tribunal cannot interpret laws, awards and other legal instruments. A tribunal could not discharge its arbitral functions if it were unable to form an opinion on a matter of interpretation … Indeed, a tribunal may find it necessary to form an opinion as to the existing legal rights of the parties as a step in arriving at the ultimate conclusions on which the tribunal bases the making of an award intended to regulate the future rights of the parties …"
5. There is no substance in the Applicant's ground of review that Garling J committed a jurisdictional error in determining or reaching views on questions of law when exercising the administrative function conferred on him by ss 78 and 79 of the CAR Act.

Error of law

1. Under the second Ground of Review, the Applicant contended that Garling J "did not apply the relevant principles with respect to the applicant's defence not being put to the jury and his honour also did not apply the relevant principles as to how a conspiratorial agreement is properly proven when addressing the issues the applicant raised in the s 78 application."
2. Garling J was not conducting an appeal in respect of directions given by the trial judge to the jury nor as to the proper means of proof of a conspiratorial agreement. His Honour was engaged in a statutory exercise, namely determining whether it appeared to him that "there was a doubt or question as to the convicted person's guilt": s 79(2), CAR Act He determined this question in the negative, just as the Court of Criminal Appeal had determined that the jury's verdict was not unreasonable, having itself conducted an independent review of the whole of the evidence.
3. The very premise of this aspect of the Applicant's argument was problematic. Having reviewed the trial judge's summing up, which was also before Garling J, we do not accept that the Applicant's defence was not put to the jury. In short form, the Applicant contended at trial that he was not a party to the alleged conspiracy. He gave evidence that was contrary to that given by a key prosecution witness, Mr Lamella. The Applicant's trial counsel attacked Mr Lamella's credibility and advanced the argument that the Applicant's differing account should be accepted, and that he should be acquitted. The trial judge put the defence case to the jury which obviously did not accept it.
4. As argument progressed, it became clear that the Applicant's case was not so much that the defence case was not put to the jury but that a particular aspect of that case was not put, namely that there was no evidence that the Applicant participated in the June importation. This is problematic because there is no doubt that the Applicant's position at trial was that he did not participate in the charged conspiracy at all, and therefore necessarily was not party to the conspiracy as reflected in the March and June importations. This position was squarely put to the jury.
5. One further difficulty with this submission was that the Applicant accepted before us that he was properly convicted (or at least did not call into question his conviction as it related to the March importation). This was, however, in effect to reintroduce his argument that there should have been two separate counts, one in respect of the March importation and one in respect of the June importation. As has already been noted, this was an argument that was rejected by both the Court of Criminal Appeal and Garling J. Perhaps more significantly, however, in light of the Applicant's acceptance that he was properly convicted, it is difficult to see how "a doubt or question as to the convicted person's guilt" within the meaning of s 79 could have been entertained. A finding that the applicant was party to the June importation in addition to the March importation went not to the existence of the Applicant's guilt but the extent of it, for sentencing purposes. A conviction on a single count cannot be partially set aside.
6. In other words, once it is understood (as was made clear by his submissions in this Court) that the Applicant did not contest his involvement in the March importation, it becomes apparent that his complaint lay outside the terms of s 79. Inherent in his acceptance of his involvement in the March importation is acceptance of his guilt of the conspiracy alleged by the Crown to have been formed before that date, with which he was charged and of which he was convicted. His purported challenge is to the inclusion in the trial of the June importation, in which he denies involvement, as part of the same conspiracy. That argument is foreclosed by the decision of the Court of Criminal Appeal.
7. Even if the Applicant's denial of involvement in the June importation were accepted, no doubt or question as to his guilt of the conspiracy offence would be raised. At most, acceptance of his denial of involvement in the June importation would have a bearing on the extent of his participation in carrying the conspiracy into effect. In no way could that raise a doubt or question as to his guilt of the offence of which he was convicted.
8. The Applicant relied upon R v LK (2010) 241 CLR 177; [2010] HCA 17 at [92] (LK) which reproduced s 11.5 of the Criminal Code and, in particular, sub-s 7 which states that any defences, procedures, limitations or qualifying provisions that apply to an offence also apply to the offences of conspiracy to commit that offence. It was not clear how reference to this subsection assisted the Applicant's argument and, in particular, his contention that his defence had not been put to the jury. The Applicant also relied upon [72], [107], [108], [112] and [114] of LK but this reliance was predicated on the June importation being an element of the offence charged, which it was not.
9. As to the Applicant's submission that the decision of Garling J was unreasonable, apart from this not being one of the grounds of review, the Applicant quoted extensively from the decision of McCallum JA in Clark v Attorney General of New South Wales [2020] NSWCA 70 before making the submission that Garling J was in effect wrong to conclude that the matters that the Applicant had sought to raise on the Part 7 application had all been raised or dealt with in the Applicant's appeal. There is no doubt that there was, at the least, a significant overlap in the matters that had been dealt with in the appeal and those which were raised before Garling J.
10. Even if there were some aspects of the Applicant's arguments that were fresh or put in different ways before Garling J, it simply does not follow that his Honour's decision was unreasonable, still less that it disclosed some error of law on the face of the record.
11. Also to be taken into account on an application for review of this kind is that the Applicant accepted that some of the arguments he was now seeking to raise were not advanced at the trial and, on the Applicant's case, were not raised on appeal to the Court of Criminal Appeal. He accepted in the course of argument before us that what was not put could have been put.
12. The Part 7 procedure does not exist to supply a further avenue of appeal for matters that could have been raised at trial or, with leave, on appeal pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). That was the significance of Garling J's point that the application before him did not involve any fresh evidence or change in the law that may give rise to a doubt of the requisite kind.
13. The application for judicial review should be dismissed.
14. The Attorney-General (Cth) took the principal role in meeting the Applicant's arguments, and there is no reason he should not have his costs of and incidental to the judicial review application. There should be no order as to costs in favour of the Attorney General (NSW) who only took a formal and essentially submitting role on the application.

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