Huynh v R [2021] NSWCCA 148

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Huynh v R [2021] NSWCCA 148 Hearing dates: 21 May 2021 Date of orders: 9 July 2021 Decision date: 09 July 2021 Before: Bathurst CJ at [1]; Beech-Jones J at [2]; N Adams J at [59]. Decision: The questions posed by the case stated are answered as follows: (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)? ANSWER: No. (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)? ANSWER: Yes. (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)? ANSWER: No. (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)? ANSWER: Yes. Catchwords: CRIMINAL LAW – powers of District Court in hearing appeal from Local Court under Crimes (Appeal and Review) Act 2001 – federal offences – whether District Court can exercise power under s 19B of Crimes Act 1914 – whether District Court can exercise power under s 20BQ of Crimes Act 1914 – Judiciary Act, s 68 and s 79 – whether powers can be exercised on appeal against sentence if no power to set aside conviction – whether powers can be exercised on appeal against conviction. Legislation Cited: Australian Constitution Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Appeal and Review) Amendment Act 2009 No 4 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Criminal Appeal Act 1912 (NSW) Criminal Code (Cth) Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986 (NSW) District Court Act 1973 (NSW) Federal Court of Australia Act 1976 (Cth) Judiciary Act 1903 (Cth) Justices Act 1902 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Cases Cited: Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 Ah Yick v Lehmert (1905) 2 CLR 593; [1905] HCA 22 ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559; [2001] HCA 1 Boulter v Kent Justices [1897] AC 556 Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39 Commissioner of Stamp Duties (NSW) v Owens [No 2] (1953) 88 CLR 168; [1953] HCA 62 CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 Director of Public Prosecutions (NSW) v Hamzy [2019] NSWCA 314 Dowson v McGrath (1956) 58 WALR 27 Hildebrand v R [2021] NSWCCA 9 John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65; [1973] HCA 21 Kruger v The Commonwealth (1997) 190 CLR 1; [1997] HCA 27 Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 Peel v The Queen (1971) 125 CLR 447; [1971] HCA 59 Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 Quinn v Director of Public Prosecutions [2015] NSWCA 331 R v Luscombe (1999) 48 NSWLR 282; [1999] NSWCCA 365 Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 Robertson v Director of Public Prosecutions (NSW) & District Court NSW [2017] NSWCA 180 Rohde v Director of Public Prosecutions (1986) 161 CLR 119; [1986] HCA 50 Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47 The Queen v LK (2010) 241 CLR 177; [2010] HCA 17 Williams v The King [No 1] (1933) 50 CLR 536; [1933] HCA 54 Williams v The King [No 2] (1934) 50 CLR 551; [1934] HCA 19 Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 Young v Royal Society for the Prevention of Cruelty to Animals New South Wales [2020] NSWCA 360 Category: Principal judgment Parties: Thi Phuong Trang Huynh (Appellant) Regina (Crown) Representation: Counsel: A Chhabra; D Bhutani (Appellant) S Dowling SC; T Epstein (Crown)