Huynh v R

Background

1. The appellant, Thi Phuong Trang Huynh, 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). To that end she was served with Court Attendance Notices that were returnable at the Parramatta Local Court in May 2020.
2. Prior to entering any plea to the charges, Ms Huynh made an application to the Local Court for the charges against her to be dismissed pursuant to s 20BQ of the Crimes Act 1914 (Cth), the terms of which are set out below. In effect s 20BQ empowers a court exercising summary jurisdiction in respect of a federal offence to dismiss the charge and discharge an accused person on conditions where it appears to the Court that they are suffering from a mental illness or an intellectual disability and that it is appropriate to deal with them otherwise than in accordance with law.
3. On 7 August 2020, the presiding Magistrate dismissed Ms Huynh's application under s 20BQ. Ms Huynh then entered pleas of guilty to all four charges. On 28 August 2020, Ms Huynh was convicted of each count. Pursuant to s 20(1)(a) of the Crimes Act 1914, the presiding Magistrate, without passing sentence, released Ms Huynh on condition that in respect of each count she enter into a self-recognisance in the amount of $500, to be of good behaviour for 12 months and to continue treatment as outlined in the report of her treating psychologist.
4. On 21 September 2020, Ms Huynh filed a notice of appeal to the District Court. Her notice of appeal stated that the penalty imposed was too severe. It was accepted that this was an appeal made under s 11(1) of the CAR Act. At the hearing of her appeal before his Honour Judge Hanley SC, Ms Huynh again sought an order under s 20BQ(1) of the Crimes Act 1914. An issue arose as to whether his Honour could make such an order when hearing an appeal under the CAR Act against sentence. A further issue arose to whether on an appeal against sentence his Honour could exercise the power conferred by s 19B of the Crimes Act 1914 and set aside her convictions and dismiss the charges against her without recording a conviction.
5. On about 18 November 2020, Ms Huynh filed and served a notice of motion seeking leave to add a conviction appeal after guilty pleas were entered in the Local Court pursuant to s 12(1) of the CAR Act. She also applied to make that application outside the 28-day time period provided for in s 12(3)(a) of the CAR Act, but before the 3-month time limit provided for in s 13(2) of the CAR Act. At the hearing of this application the Court was advised that his Honour granted that leave.

Questions of law that arise

1. At the request of the parties, Judge Hanley SC submitted the following questions for this Court's determination, namely: (1) On an appeal against sentence brought pursuant to s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW) does the District Court have the power to set aside the conviction imposed by the Local Court, dismiss the charge, and discharge the appellant pursuant to s 20BQ(1) of the Crimes Act 1914 (Cth)? (2) On an appeal against conviction brought pursuant to s 12(1) of the Crimes (Appeal and Review) Act 2001 (NSW) does the District Court have the power to set aside the conviction imposed by the Local Court, dismiss the charge and discharge the appellant pursuant to s 20BQ(1) of the Crimes Act 1914 (Cth)? (3) On an appeal against sentence brought pursuant to s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW) does the District Court have the power to set aside the conviction imposed by the Local Court and make orders pursuant to s 19B of the Crimes Act 1914 (Cth)? (4) On an appeal against conviction brought pursuant to s 12(1) of the Crimes (Appeal and Review) Act 2001 (NSW) does the District Court have the power to set aside the conviction imposed by the Local Court and make orders pursuant to s 19B of the Crimes Act 1914 (Cth)?
2. Subsection 5B(1) of the Criminal Appeal Act provides that a judge of the District Court may submit "any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge" to this Court for determination. In determining those questions this Court may "make such order or give any such direction to the District Court as it thinks fit". Three matters should be noted about that provision and its application to this matter.
3. First, any question that is submitted must be a question that "arises" on any appeal to the District Court in its criminal and special jurisdiction. Given the background to the matter, it is clear that each of these four questions does arise on the appeal to the District Court in its "criminal and special jurisdiction". Section 166(1) of the District Court Act 1973 (NSW) provides that the District Court "has the criminal jurisdiction conferred or imposed on it by or under this Act, the Criminal Procedure Act 1986 and any other Act". In this case that criminal jurisdiction is conferred by "[an]other Act", specifically Division 1 of Part 3 of the CAR Act.

Federal Jurisdiction and the Local Court

1. The charges laid against the appellant involve federal jurisdiction. In particular they involve a matter arising under a law made by the Commonwealth Parliament, specifically the Criminal Code as given force of law by the Criminal Code Act 1995 (Cth) (Australian Constitution, s 76(ii)). It follows that, absent federal legislation, it was beyond the legislative capacity of the Parliament of New South Wales to confer jurisdiction on the Local Court (or the District Court or this Court) to hear and determine those charges or otherwise regulate the exercise of any jurisdiction those courts possess in relation to those charges (Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 at [103] per Bell, Gageler, Keane, Nettle and Gordon JJ; "Rizeq").
2. The relevant federal legislation conferring jurisdiction on the Local Court and enabling State legislation to regulate its exercise is the Judiciary Act 1903, the relevant provisions of which are ss 39(2), 68(2) and 79(1). The text of those provisions is set out below. At this point it suffices to state that each of ss 39(2) and 68(2) of the Judiciary Act conferred on the Local Court jurisdiction to hear and determine the charges against Ms Huynh.
3. In the disposition of those charges, the Local Court had the powers conferred by State law and picked up and applied by either or both of s 68(1) and 79(1) of the Judiciary Act 1903. In addition, the Local Court was conferred with various powers as found within Part 1B of the Crimes Act 1914. In some respects, those powers supplement, and in other respects displace, the operation of State sentencing law made applicable by s 68(1) (Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 ("Putland"); Hildebrand v R [2021] NSWCCA 9).
4. The two particular powers relevant to this case were those conferred by s 19B and s 20BQ of the Crimes Act 1914 which relevantly provide: "19B Discharge of offenders without proceeding to conviction (1) Where: (a) a person is charged before a court with a federal offence or federal offences; and (b) the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to: (i) the character, antecedents, age, health or mental condition of the person; (ii) the extent (if any) to which the offence is of a trivial nature; or (iii) the extent (if any) to which the offence was committed under extenuating circumstances; that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation; the court may, by order: (c) dismiss the charge or charges in respect of which the court is so satisfied; or (d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions: (i) … (ii) … and (iii) … … (3) Where a charge or charges against a person is or are dismissed, or a person is discharged, in pursuance of an order made under subsection (1): (a) the person shall have such rights of appeal on the ground that he or she was not guilty of the offence or offences concerned with which he or she was charged as he or she would have had if the court had convicted him or her of the offence or offences concerned; and (b) there shall be such rights of appeal in respect of the manner in which the person is dealt with for the offence or offence concerned as there would have been if: (i) the court had, immediately before so dealing with him or her, convicted him or her of the offence or offences concerned; and (ii) the manner in which he or she is dealt with had been a sentence or sentences passed upon that conviction." … 20BQ Person suffering from mental illness or intellectual disability (1) Where, in proceedings in a State or Territory before a court of summary jurisdiction in respect of a federal offence, it appears to the court: (a) that the person charged is suffering from a mental illness within the meaning of the civil law of the State or Territory or is suffering from an intellectual disability; and (b) that, on an outline of the facts alleged in the proceedings, or such other evidence as the court considers relevant, it would be more appropriate to deal with the person under this Division than otherwise in accordance with law; the court may, by order: (c) dismiss the charge and discharge the person: (i) into the care of a responsible person, unconditionally, or subject to conditions, for a specified period that does not exceed 3 years; or (ii) on condition that the person attend on another person, or at a place, specified by the court for an assessment of the first-mentioned person's mental condition, or for treatment, or both, but so that the total period for which the person is required to attend on that other person or at that place does not exceed 3 years; or (iii) unconditionally; or (d) do one or more of the following: (i) adjourn the proceedings; (ii) remand the person on bail; (iii) make any other order that the court considers appropriate. (2) Where a court makes an order under paragraph (1)(c) in respect of a person and a federal offence with which the person has been charged, the order acts as a stay against any proceedings, or any further proceedings, against the person in respect of the offence. (3) Where a court makes an order under subsection (1) in respect of a person and a federal offence with which the person has been charged, the court must not make an order under section 19B, 20, 20AB (other than an order covered by subparagraph 20AB(1AA)(a)(viia)) or 21B in respect of the person in respect of the offence." (emphasis added)

The CAR Act

1. Part 3 of the CAR Act confers on the District Court jurisdiction and power to hear and determine appeals from the Local Court in the exercise of its summary jurisdiction in respect of State offences. To that end, within Division 1 of Part 3, ss 11, 12, 13, 20 and 28 provide: "11 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both). (1A) Subsection (1) does not apply in respect of a conviction if the person was convicted in the person's absence or following the person's plea of guilty. (1B) Any person whose application under section 4 for annulment of a sentence has been refused by the Local Court may appeal to the District Court against the sentence. (2) An appeal must be made - (a) within 28 days after sentence is imposed, or (b) if an application for annulment of the conviction or sentence has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part, but (in the case of an appeal against a conviction) may not be made before sentence is imposed. … 12 Appeals requiring leave (1) Any person who has been convicted by the Local Court in the person's absence or following the person's plea of guilty may appeal to the District Court against the conviction, but only by leave of the District Court. (2) An application for leave to appeal may not be made in relation to a conviction in respect of which the defendant - (a) is entitled to make an application under section 4 but has not done so, or (b) has made an application under section 4 but the application has not been disposed of under Part 2. (3) An application for leave to appeal must be made - (a) within 28 days after (but not before) the sentence imposed after the relevant conviction is made, or (b) if an application for annulment of the conviction has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part. 13 Late applications for leave to appeal (1) An appeal to the District Court may be made-- (a) by any person by whom an appeal could be made under section 11, but for section 11 (2), and (a1) by any defendant by whom an appeal could be made under section 11A, but for section 11A (2), and (b) by any person by whom an application for leave to appeal could be made under section 12, but for section 12 (3), but only by leave of the District Court. (2) An application for leave to appeal must be made within 3 months after the relevant conviction or sentence is made or imposed, or the relevant application under section 4 is refused, as the case may require. … 20 Determination of appeals (1) The District Court may determine an appeal against conviction - (a) by setting aside the conviction, or (b) by dismissing the appeal, or (c) in the case of an appeal made with leave under section 12 (1) - by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the District Court. (2) The District Court may determine an appeal against sentence - (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal. … 28 Miscellaneous powers (1) Without limiting its other powers, the District Court may do any one or more of the following - (a) it may specify the proclaimed place (within the meaning of the District Court Act 1973) at which the hearing of an appeal or application for leave to appeal is to be heard or continued, (b) it may specify the sitting at which the hearing of an appeal or application for leave to appeal is to be heard or continued, (c) it may adjourn the hearing of an appeal or application for leave to appeal. (2) In determining an appeal, the District Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings. (3) Subject to section 70, the District Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just."

Federal Jurisdiction and the CAR Act

1. The scheme for appeals from the Local Court to the District Court under Division 1 of Part 3 of the CAR Act does not of its own force apply to federal offences (Rizeq). The source of the District Court's jurisdiction to hear appeals in respect of the summary disposition of federal offences by the Local Court is also ss 39(2) and 68(2) of the Judiciary Act. At this point it is appropriate to set out those provisions as well as ss 68(1) and 79(1): "39 Federal Jurisdiction of State Courts in other matters (1) … (2) The several Courts of the States shall within the limits of their several jurisdictions, whether such limits are as to locality, subject-matter, or otherwise, be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it, except as provided in section 38, and subject to the following conditions and restrictions … 68 Jurisdiction of State and Territory courts in criminal cases (1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for: (a) their summary conviction; and (b) their examination and commitment for trial on indictment; and (c) their trial and conviction on indictment; and (d) the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith; and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section. (2) The several Courts of a State or Territory exercising jurisdiction with respect to: (a) the summary conviction; or (b) the examination and commitment for trial on indictment; or (c) the trial and conviction on indictment; of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth. … 79 State or Territory laws to govern where applicable (1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable."

Is the power conferred by section 20BQ exercisable by the District Court on an Appeal under the CAR Act?

1. The questions raised by the stated case do not directly concern the scope of the District Court's jurisdiction to hear appeals in relation to the disposition of federal offences. Instead, they concern the powers it can exercise in determining such appeals. In hearing the appellant's appeal under the CAR Act there were two potential sources of power available to the District Court. The first was such powers as are conferred by the CAR Act and picked up and applied by ss 68(1) and 79(1) of the Judiciary Act 1903 set out above. The second is such powers as are directly conferred on the District Court by federal legislation including, potentially, s 19B and s 20BQ of the Crimes Act 1914.
2. The written submissions made by the parties appeared to focus solely on the former as the basis for the source of the District Court's authority to exercise the powers in s 19B and s 20BQ. They addressed whether the scope of the powers conferred by the CAR Act enabled the District Court to exercise such powers the Local Court possessed in respect of federal offences rather that whether the Crimes Act 1914 directly conferred powers on the District Court. Hence the parties debated whether or not the District Court could make an order under s 20BQ in an appeal under the CAR Act on the basis that such an order was exercisable by the Local Court (by the operations of ss 68(1) and 79(1) of the Judiciary Act 1903) and then fell within s 28(2) of the CAR Act. It follows from the above that, subject to considering the effect on the exercise of that power of the fact that an appellant has already been convicted, s 28(2) of the CAR Act does extend that far.
3. However, the same answer might follow from consideration of whether s 20BQ of the Crimes Act 1914 directly conferred power on the District Court when hearing an appeal under the CAR Act concerning federal offences. As noted, each of s 19B and s 20BQ assume that the State Court hearing the proceedings is otherwise possessed of federal jurisdiction. In the case of the District Court hearing an appeal under the CAR Act, the basis upon which it exercised federal jurisdiction has already been identified. From that point, s 20BQ(1) confers a power on a Court to make an order "in proceedings in a State or Territory before a court of summary jurisdiction in respect of a federal offence" and where it appears to the Court, inter alia, "that the person charged" is suffering from mental illness. An appeal under the CAR Act to the District Court from the Local Court's disposition of a prosecution of a federal offence is a "proceedings in a State ... before a court … in respect of a federal offence." However, there may be scope for argument as to whether in exercising this function the District Court is a court of "summary jurisdiction" (see Dowson v McGrath (1956) 58 WALR 27 at 32; Boulter v Kent Justices [1897] AC 556 at 563). An "appeal" to the District Court is a rehearing of what took place in the Local Court's exercise of its own summary jurisdiction but not a hearing de novo (see s 17 and s 18, CAR Act; Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39). Ultimately, it is not necessary to decide whether such proceedings are properly characterised as an exercise of a summary jurisdiction by the District Court.

Is the power conferred by s 19B exercisable by the District Court on an Appeal under the CAR Act?

1. Insofar as the District Court is hearing a conviction appeal under Division 1 of Part 3 of the CAR Act then the reasoning in [50] to [51] concerning s 20BQ is applicable to the exercise of the power conferred by s 19B of the Crimes Act 1914. Section 19B is expressed to operate in circumstances "where a person is charged before a court with a federal offence". In that sense it operates to directly confer a power upon a court, federal or state, hearing proceedings in respect of a federal offence. It does not rely on any provision of the Judiciary Act to pick up State law before it applies. As with s 20BQ, there is no reason to restrict its operation so that it cannot be exercised by an appellate court because the appellant has already been convicted in the Court below at least where the appeal court has set aside their conviction.
2. Can the power conferred by s 19B be exercised by the District Court on a sentence appeal under Division 1 of Part 3 of the CAR Act? It follows from the above that could only be so if, on such an appeal, the District Court was able to exercise some power to set aside the conviction imposed by the Local Court which was picked up and applied by either s 68(1) or s 79(1) of the Judiciary Act 1903. The only potential source of power is s 3(3A) of the CAR Act. However, the power to set aside a conviction conferred by s 3(3A) is expressed to operate only in respect of an order made under s 10 of the Sentencing Procedure Act. The CDPP submitted that, given the terms of s 3(3A) of the CAR Act, it is not capable of being picked up and applied to s 19B of the Crimes Act 1914. I agree. Section 79(1) of the Judiciary Act is not capable of extending that power to the circumstance where the District Court proposes to make an order under s 19B of the Crimes Act 1914 because to do would be to "alter the language of a State statute and apply it in that altered form" (John Robertson at 95 per Mason J and at 88 per Gibbs J; Commissioner of Stamp Duties (NSW) v Owens [No 2] (1953) 88 CLR 168; [1953] HCA 62). The position may have been different if the section was expressed in more general terms that were capable of including an order under s 19B of the Crimes Act 1914, but it is not (see Putland at [38]). Given the observation in Putland noted above (at [39]), it further follows that s 68(1) of the Judiciary Act 1903 does not pick up and apply s 3(3A) of the CAR Act to enable the District Court to set aside a conviction in a sentence appeal and make an order under s 19B of the Crimes Act 1914 either.

Proposed Answers

1. I propose that the questions posed as set out in [8] above be answered as follows: (1) No; (2) Yes; (3) No; (4) Yes.
2. N ADAMS J: I have had the considerable advantage of reading the judgment of Beech-Jones J in draft. I agree with the answers and reasons provided by his Honour.

Amendments 13 July 2021 - [32] The word "not" was inserted as follows: On behalf of the CDPP it was submitted that this aspect of Young was not the subject of argument... DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2021