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) Solicitors: Zahr Partners (Appellant) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2020/95861 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 23 November 2020 Before: Hanley SC DCJ File Number(s): 2020/95861 HEADNOTE [This headnote is not to be read as part of the judgment] Case stated from the District Court to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912. The appellant, Ms 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). Prior to entering any plea to the charges, Ms Huynh made an application to the Local Court for the charges to be dismissed pursuant to s 20BQ of the Crimes Act 1914 (Cth). Subsection 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 they are suffering from a mental illness or an intellectual disability. On 7 August 2020, the presiding Magistrate dismissed the application under s 20BQ. Ms Huynh then entered pleas of guilty to all four counts. She was convicted of each count. Ms Huynh appealed to the District Court against her sentences under s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW). Subsequently she sought leave to appeal her convictions. At the hearing of her appeal an issue arose as to whether the District Court could exercise the power conferred by s 20BQ or the power conferred by s 19B of the Crimes Act 1914 to dismiss the charges and not enter convictions. At the request of the parties, Judge Hanley SC submitted the following questions for the Court of Criminal Appeal'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)? The issues that arose on the stated case were: 1. Can the District Court exercise the power conferred by former s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) in an appeal against conviction or sentence under the Crimes (Appeal and Review) Act 2001 (the "CAR Act")? 2. Does the District Court in hearing an appeal against sentence under the CAR Act have an implied power to set aside a conviction entered in the Local Court? 3. Is the power conferred by s 20BQ of the Crimes Act 1914 exercisable by the District Court on an appeal under the CAR Act against (a) a sentence imposed by the Local Court for a federal offence? (b) a conviction and sentence imposed by the Local Court for a federal offence? 4. Is the power conferred by s 19B of the Crimes Act 1914 exercisable by the District Court on an appeal under the CAR Act against (a) a sentence imposed by the Local Court for a federal offence? (b) a conviction and sentence imposed by the Local Court for a federal offence? Held, answering the following to the above questions: Question 1: No; Question 2: Yes; Question 3: No; Question 4: Yes (Bathurst CJ; Beech-Jones J; N Adams J agreeing) In relation to issues 1 and 2: (i) Subsection s 28(2) of the CAR Act, which enables the District Court, in determining an appeal, to exercise any function that the Local Court could have exercised in the original proceedings, is not confined to procedural powers exercised "in determining an appeal". The concept of "function" in s 28(2) embrace an exercise of powers such as that conferred by former s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the "MHFPA Act"). On an appeal, the District Court should have available to it the full range of powers to deal with charges as the Local Court possessed to the extent that the language of the CAR Act permits. (ii) While s 28(2) refers to the District Court exercising any "function" of the Local Court, it is not a function of the Local Court to set aside its own convictions. It follows that the power conferred by the former s 32 of the MHFPA Act is only exercisable by the District Court in an appeal under the CAR Act that challenged the appellant's conviction. The District Court does not have an implied power to make an order setting aside the conviction entered in the Court below when only hearing a sentence appeal. [1] Bathurst CJ; [21], [29]-[35] Beech-Jones J; [59] N Adams J. Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485; Young v Royal Society for the Prevention of Cruelty to Animals New South Wales [2020] NSWCA 360 considered. In relation to issues 3(a) and 3(b): (i) Subsection 20BQ refers to a person that is "charged". A person who has been charged and convicted does not cease to be a person "charged" if, and when, the conviction is later set aside. However, for the power conferred by s 20BQ to be exercised on appeal under the CAR Act, the District Court must be able to set aside the conviction imposed on the appellant. If, as in this case, the proceedings are an appeal against conviction, then the District Court is conferred with express power under s 20(1) of the CAR Act to do so which is picked up and applied to federal offences by either or both s 68(1) and s 79(1) of the Judiciary Act 1903 (Cth). (ii) Leaving aside s 3(3A) of the CAR Act, there is no power conferred by the CAR Act to set aside a conviction where the appeal only concerns sentence. It follows that, on a sentence appeal in a respect of a federal offence, no power to set aside a conviction is conferred on the District Court that can be picked up and applied by either or both s 68(1) and s 79(1) of the Judiciary Act. John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65; [1973] HCA 21; Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8; Kruger v The Commonwealth (1997) 190 CLR 1; [1997] HCA 27; Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47 considered. [1] Bathurst CJ; [49]-[55] Beech-Jones J, [59] N Adams J. In relation to issues 4(a) and 4(b): (i) The District Court, in hearing a conviction appeal under Division 1 of Part 3 of the CAR Act, should not, as with s 20BQ, be restricted from exercising the power directly conferred by s 19B of the Crimes Act 1914 because the appellant has already been convicted in the court below, at least where the appeal court has set aside their conviction. (ii) The power conferred by s 19B may only be exercised by the District Court on a sentence appeal if 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. The only potential source of power is s 3(3A) of the CAR Act. However, this power is expressed to operate only in respect of an order made under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and is not capable of being picked up and applied to s 19B. [1] Bathurst CJ; [56]-[57] Beech-Jones J; [59] N Adams J. John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65; [1973] HCA 21; Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 considered. Judgment 1. BATHURST CJ: I agree with the orders proposed by Beech-Jones J and with his Honour's reasons. 2. BEECH-JONES J: This is a case stated from the District Court pursuant to s 5B(1) of the Criminal Appeal Act 1912 (NSW). The questions posed concern the powers exercised by that Court when hearing an appeal from the Local Court pursuant to Division 1 of Part 3 of the Crimes (Appeal and Review) Act 2001 (NSW) (the "CAR Act") in respect of a federal offence. 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)? 1. 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. 2. 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. 3. Second, the question that is submitted must be a "question of law". Each of the four questions that have been submitted answers that description. They concern the powers exercisable by the District Court. They are expressed in terms that enable them to be "considered separately from the facts with which it may be connected in a given case" (Williams v The Queen (1986) 161 CLR 278 at 287 per Gibbs CJ; [1986] HCA 88; Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 at [109] per Bathurst CJ and Bell P). 4. Third, as I will explain, like the Local Court and the District Court, in determining this stated case this Court is also exercising federal jurisdiction. For the reasons set out below two sources of that jurisdiction are ss 39(2) and 68(2) of the Judiciary Act 1903 (Cth). 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) 1. Three matters should be noted about these provisions. 2. First, neither of these provisions vest jurisdiction in any court to hear proceedings in which the relevant person is charged. Instead, these provisions assume that the court that is dealing with the relevant offender or person charged is otherwise possessed of jurisdiction in respect of that charge (or that offender). In the case of the Local Court, the sources of that jurisdiction are noted above. Conversely neither s 19B nor s 20BQ of the Crimes Act 1914 necessarily rely upon any part of the Judiciary Act 1903 to confer authority on the courts they identify to exercise the power to dismiss or discharge the person charged with the federal offence. Instead, they confer power to do so directly. 3. Second, whereas s 19B confers a power on "a court" which has a person before it charged with a federal offence, the power conferred by section 20BQ is only capable of being exercised by a particular type of State or Territory court, namely a State of Territory court of summary jurisdiction hearing proceedings in respect of a federal offence. There is no doubt that that includes the Local Court. 4. Third, each of these powers concerns a person who is "charged". As noted below, one matter raised by the Commonwealth Director of Public Prosecutions ("CDPP") concerns whether such a power is engaged in a circumstance where such a person appeals to the District Court and is, by the time the appeal is heard, already "convicted". 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." 1. These sections draw a distinction between an appeal against conviction and an appeal against sentence. Thus, s 11(1) refers to a person appealing against a sentence. Subsection 20(2) identifies an "appeal against sentence" and, with such an appeal, confers power on the District Court to set aside the sentence, vary the sentence (or dismiss the appeal). Section 3 contains an inclusive definition of "sentence" and s 3(3) contains an inclusive definition of "varying a sentence", aspects of which are outlined below. Subsection 20(2) does not expressly confer a power to set aside a conviction on a sentence appeal. 2. One question that has arisen in relation to the application of these and similar provisions in the CAR Act and its predecessors is how they operate upon the exercise of the power conferred on sentencing courts, who find a person guilty of an offence, to discharge the person without proceeding to conviction. This power is currently found within s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the "Sentencing Procedure Act"). Its predecessor was former s 556A of the Crimes Act 1900 (NSW). Two related problems have arisen with that provision and the statutory regime for appeals to the District Court. 3. The first problem was how the exercise of the power by the Local Court could be the subject of an appeal either by the person found guilty or the prosecution. To address this, sub-paragraph (b) of the definition of "sentence" in s 3 of the CAR Act specifically includes orders made under s 10 of the Sentencing Procedure Act thereby allowing a prosecution appeal against a sentence under Division 2 of Part 3 of the CAR Act to extend to an appeal against an order under s 10. Further, s 10(5) of the Sentencing Procedure Act confers on a person the subject of an order under s 10, "the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence", thus enabling such a person to bring a conviction appeal. 4. The second problem was whether, if on an appeal from the Local Court against sentence by a person who had been convicted and sentenced in which the District Court otherwise determined that it was appropriate to make an order under s 10 (or its equivalent), could the District Court set aside the conviction imposed in the Local Court even though no such power is expressly conferred by s 20(2)? 5. In Advanced Arbor Service Pty Ltd v Strathfield Municipal Council [2006] NSWLEC 485 ("Arbor") Preston CJ held that, on an appeal under s 31(1) of the CAR Act to the Land and Environment Court against sentence by a person who had pleaded guilty to and been convicted of an environmental offence and then fined, that Court could not exercise the power under s 10 of the Sentencing Procedure Act because it was not conferred with any express power by s 39(2) of the CAR Act to set aside a conviction (at [19]). Section 39(2) of the CAR Act is in identical terms to s 20(2). Although the Land and Environment Court could grant leave to appeal against conviction to a person who pleaded guilty, the scope of such an appeal is, unlike the case of the District Court, restricted to appeals on questions of law alone (CAR Act, s 32(1); Arbor at [21]). Further in Arbor no such leave could have been granted because the application for that leave was made outside the three-month time period in s 33(2) of the CAR Act (Arbor at [25]). A similar time bar operates with appeals to the District Court (CAR Act, s 13(2)). 6. The effect of Arbor on appeals under the CAR Act was addressed by Schedule 1 to Crimes (Appeal and Review) Amendment Act 2009 No 4 (NSW) which added an addendum to the meaning of the "varying a sentence" in s 3(3) of the CAR Act so that it reads: "3(3) In this Act, a reference to varying a sentence includes— (a) a reference to varying the severity of the sentence, and (b) a reference to setting aside the sentence and imposing some other sentence of a more or less severe nature, and (c) a reference to varying or revoking a condition of, or imposing a new condition on, an intensive correction order, community correction order or conditional release order. 3(3A) Without limiting sub-section 3, a power conferred on an appeal court under this Act to vary a sentence includes the power to make an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 and, for that purpose, to set aside a conviction made by the original local court (without setting aside the finding of guilt on which the conviction is based) to enable the order to be made." 1. Further, the reasoning in Arbor has no application to the power of this Court under s 6(3) of the Criminal Appeal Act 1912 in relation to an appeal against sentence to "quash the sentence and pass such other sentence in substitution therefor". The definition of "sentence" in s 2 of the Criminal Appeal Act 1912 confirms that the Court's power to "pass" sentence includes the power to make orders under s 10 of the Sentencing Procedure Act. 2. In addition, during the hearing of the appeal in this Court the parties addressed the power of the District Court hearing an appeal against sentence following a conviction to exercise the power conferred by former s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("MHFPA"). Section 32 conferred a power on courts exercising summary jurisdiction similar to the power conferred by s 20BQ of the Crimes Act 1914 in that, where it appeared that the defendant was cognitively impaired, suffering from mental illness or a mental condition, the court could, inter alia, dismiss the charge and discharge the person including on conditions (s 32(3)). In Robertson v Director of Public Prosecutions (NSW) & District Court NSW [2017] NSWCA 180 ("Robertson") the Court of Appeal dismissed an application for judicial review of a judgment of the District Court rejecting an application under s 32 in respect of a person who had appealed against sentence (only) after being convicted and sentenced in the Local Court (at [9]). However, no question was raised in Robertson as to whether that power was capable of being exercised by the District Court (see also Quinn v Director of Public Prosecutions [2015] NSWCA 331). 3. In Young v Royal Society for the Prevention of Cruelty to Animals New South Wales [2020] NSWCA 360 ("Young") the Court of Appeal held that, where the District Court exercised the power conferred by former s 32 of the MHFPA in determining an appeal from the Local Court, the proceedings had terminated in the appellant's favour and he could sue for malicious prosecution (at [49] per Leeming JA, at [80] per Emmett AJA and at [96] per Preston CJ of LEC). 4. Of present relevance is that in Young Leeming JA set out the terms of s 32 of the MHFPA and observed that it was "applicable to the District Court when hearing and determining Mr Young's appeal: Crimes (Appeal and Review) Act 2001 (NSW), s 28" (at [35]). Similarly, in describing the disposition of the appeal by the District Court, Preston CJ of LEC stated in Young (at [91]): "On appeal, the District Court, in exercising the function the Local Court had under s 32(3) of the Mental Health (Forensic Provisions) Act 1990, by dint of s 28 of the Crimes (Appeal and Review) Act 2001, made orders quashing the convictions and orders of the Local Court, dismissing the charges and discharging Mr Young on certain conditions." 1. Based on these statements, Ms Huynh submitted that s 28(2) of the CAR Act was the source of the District Court's power to exercise the power conferred by former s 32 of the MHFPA. On behalf of the CDPP it was submitted that this aspect of Young was not the subject of argument and it was not "authority" concerning the scope of s 28 (see CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 at [13]). I accept that submission. The CDPP went further and submitted that this aspect of Young was wrong. The CDPP sought to confine the operation of s 28(2) to procedural powers exercised "in determining an appeal". I do not accept that submission. I can see no reason why the concept of "function" in s 28(2) of the CAR Act could not embrace an exercise of the power conferred by former s 32 of the MHFPA (and its successor provision being s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)). Section 3 of the CAR Act defines "function" as including "a power, authority or duty". In Director of Public Prosecutions (NSW) v Hamzy [2019] NSWCA 314 at [49], Gleeson JA (with whom Payne and Brereton JJA agreed) held s 28(2) enables the District Court to exercise the Local Court's power to stay criminal proceedings. On an appeal to the District Court from the Local Court, the District Court should have available to it the full range of powers to deal with charges as the Local Court possessed to the extent that the language of the CAR Act permits. 2. However, an acceptance of the statements in Young as to the scope of s 28(2) of CAR Act does not address whether the power conferred by former s 32 of the MHFPA can be exercised in a sentence appeal following conviction in the Local Court. In Young the District Court exercised the power conferred by former s 32 of the MHFPA following an appeal against conviction under the CAR Act (Young at [10]). While s 28(2) refers to the District Court exercising any "function" of the Local Court, it is not a function of the Local Court to set aside its own convictions (except in certain narrowly defined circumstances; CAR Act, s 4A; Criminal Procedure Act 1986, s 207). Neither s 32 of the former MHFPA or s 20(2) of the CAR Act confers a power to set aside a conviction and there has not been any amendment to the meaning of "varying a sentence" to accommodate such an order such as has occurred with orders made under s 10 of the Sentencing Procedure Act. It follows that the power conferred by former s 32 of the MHFPA is only exercisable by the District Court in an appeal under the CAR Act that challenged the appellant's conviction and not just their sentence. 3. In her written submissions, Ms Huynh contended that the District Court had such implied powers as were necessary to enable it to pass sentences including by making an order under s 20BQ of the Crimes Act 1914 by reference to s 28(2) and an order under s 19B of the Crimes Act 1914 by reference to s20(2) of the CAR Act. I understand that submission to include an implied power to make an order setting aside the conviction entered in the Court below when only hearing an appeal against sentence. 4. I do not accept this contention. The scope of the District Court's implied powers extends to such powers as are "necessary" to enable it to effectively exercise its jurisdiction (Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 at [50]-[51]), ie, it has such powers as are reasonably required or ancillary to the "accomplishment of the express powers" it is given (Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 at [51]). Subsections 20(1) and 20(2) draw a solid distinction between the power exercisable on an appeal against conviction and an appeal against sentence. Save for s 3(3A) the latter clearly do not extend to setting aside a conviction. The scheme for appeals under the CAR Act would be substantially re-written if there was an implied power in the District Court in sentence appeals to set aside convictions generally. Such a conclusion would be inconsistent with Arbor. 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." 1. In addressing how these provisions are engaged in this context it is important to differentiate between jurisdiction and power. In Solomons v District Court of New South Wales (2002) 211 CLR 119; [2002] HCA 47 at [19] ('Solomons") Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ described the operation of s 68 as follows: "Section 68 itself distinguishes between jurisdiction on the one hand and powers and procedures on the other. Sub-section (1) provides for State laws with respect to procedure to apply 'so far as they are applicable'. Sub-sections (4) and (5A) confer powers respectively to amend informations and, in appropriate circumstances, to decline to exercise jurisdiction. Sub-section (2) is concerned with the ambit of the jurisdiction rather than the content of the powers to be exercised under it." 1. For present purposes a similar or analogous distinction operates between s 39(2) and s 79(1) of the Judiciary Act 1903; the former, like s 68(2), is concerned with the vesting or ambit of jurisdiction and the latter with the powers and procedures governing its exercise. 2. In relation to the exercise of powers conferred by State law, although s 68(1) and s 79(1) of the Judiciary Act 1903 contain different phrases concerning what State laws are picked up and applied in that s 68(1) refers to such laws "so far as they are applicable" and s 79 refers to such laws as "are applicable" but "except as otherwise provided", in Putland at [7], it was observed that there exists "little, if any, functional difference" between these two forms of qualification. 3. In John Robertson & Co Ltd v Ferguson Transformers Pty Ltd (1973) 129 CLR 65; [1973] HCA 21 ("John Robertson"), Mason J observed that s 79(1) of the Judiciary Act 1903 does not confer any authority on a court exercising federal jurisdiction to alter the language of a State statute and apply it in that altered form. However, that is subject to the proviso that "[s]ection 79 requires the assumption to be made that federal courts lie within the field of application of State laws on the topics to which it refers, at least in those cases in which the State laws are expressed" (at 95). Subsequently, it has been accepted that such laws can be picked up and applied even if they are expressed to apply to State courts specifically (Kruger v The Commonwealth (1997) 190 CLR 1 at 140 per Gaudron J; [1997] HCA 27; ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 593 per Gleeson CJ, Gaudron and Gummow JJ and at 612 per McHugh J; [2001] HCA 1) although there may be statutory provisions "couched in terms which make it impossible for them to be 'picked up'" (Kruger id). 4. In relation to the vesting of jurisdiction, it is unnecessary to describe the differences between s 39(2) and s 68(1) of the Judiciary Act 1903 other than to note that s 39(2) maintains the limits on locality that each State court is subject to in dealing with offences, whereas s 68 does not (see s 68(5), (5A), (5C)). Otherwise, neither section is to be construed as limiting the other (s 68(11)). 5. The jurisdiction vested in State Courts by s 39(2) of the Judiciary Act 1903 extends to appellate jurisdiction including criminal matters (Ah Yick v Lehmert (1905) 2 CLR 593; [1905] HCA 22). In R v Luscombe (1999) 48 NSWLR 282; [1999] NSWCCA 365 ("Luscombe") this Court held that s 39(2) of the Judiciary Act 1903 operated on s 19B(3)(b) of the Crimes Act 1914 to confer on the District Court jurisdiction to hear and determine an appeal from an order made by the Local Court discharging a person without proceeding to a conviction under s 19B(1)(d) (at [63]). At that time the District Court was conferred with jurisdiction by the Justices Act 1902 to hear appeals by the prosecution against "sentences" imposed for State offences (Luscombe at [6]). 6. In Williams v The King [No 2] (1934) 50 CLR 551; [1934] HCA 19, Dixon J described the "general policy" disclosed by s 68 as being "to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice" (at 560; see Hildebrand v R [2021] NSWCCA 9 at [10] per Payne JA). This observation is still accurate even though recently enacted statutory provisions suggest an emerging intention to create a separate, if not independent, system of federal criminal justice (see Federal Court of Australia Act 1976 (Cth), Part 3, Div 1A and Div 2A). 7. Thus, in terms of the ambit or scope of the jurisdiction, s 68(2) vests a "like" jurisdiction in State Courts in respect of federal offences to that which they exercise in relation to state offences. Consistent with the policy of s 68 noted above, the concept of "like" jurisdiction was described by Starke J in Williams v The King [No 1] (1933) 50 CLR 536 at 543; [1933] HCA 54 as "jurisdiction analogous, similar or corresponding to that of the State Court in respect of offences against the laws of the State". Hence, in The Queen v LK (2010) 241 CLR 177; [2010] HCA 17, s 68(2) was found to vest in this Court a "like" jurisdiction to that conferred by s 107 of the CAR Act to hear an appeal from a directed acquittal in a trial by jury or an acquittal in a judge alone trial in the Supreme or District Court, or in the exercise by this Court or the Land and Environment Court of its summary jurisdiction (at [20] per French CJ and at [86] per Gummow, Hayne, Crennan, Kiefel and Bell JJ). This is so, even though, by its terms, s 107(2) only operates on State offences and only confers the right of appeal on the NSW Director of Public Prosecutions or the NSW Attorney-General. Section 68(2) of the Judiciary Act 1903 operated to extend its operation to federal offences. 8. Similarly in Peel v The Queen (1971) 125 CLR 447; [1971] HCA 59 it was held that s 68(2) operated upon s 5D of the Criminal Appeal Act 1912 to confer jurisdiction on this Court to hear an appeal by the Attorney-General for the Commonwealth against the alleged inadequacy of a sentence imposed for a federal offence. This reasoning was applied so as to enable such appeals by the CDPP in Rohde v Director of Public Prosecutions (1986) 161 CLR 119; [1986] HCA 50. 9. Consistent with the objective stated in Williams [No 2], s 68 is to be construed liberally. Hence, the phrase "trial or conviction" in s 68(1)(d) and s 68(2) is not confined to trials on indictment but include summary hearings (Luscombe at [77]); ie the reference to appeals in both subsections include appeals from summary convictions. Further the concept of "appeals" as used in both sub-sections is not confined to appeals in the strict sense but has an "expansive application" (Luscombe at [78]). Similarly, the phrase "conviction" or at least the phrase "appeals arising out of any such … conviction" in s 68(1)(d) and 68(2) extends to an appeal against sentence (Williams [No 2] at 560 per Dixon J; Peel v The Queen at 468 per Gibbs J). 10. The effect of the provisions of the CAR Act is such as to make the District Court a court of a State exercising jurisdiction with respect to the determination of appeals arising out of the summary conviction of persons charged with offences against the laws of this State. By the operation of s 68(2) of the Judiciary Act 1903 the District Court is conferred with "like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth" such as the applicant. By this means, as well as by 39(2) of the Judiciary Act 1903, it can hear and determine appeals against convictions and sentences imposed for federal offences (Luscombe at 297- 298 per Spigelman CJ, Dunford and Adams JJ). 11. It does not necessarily follow from these conclusions that every form of order made by a Local Court in the disposition of a proceedings concerning a federal offence can be the subject of an appeal to the District Court. Whether or not that is so will depend on an analysis of the operation of s 39(2) and s 68(2) on the relevant provisions of the Crimes Act 1914 and the CAR Act of the type undertaken in Luscombe. In light of Luscombe, it can be stated that by the operation of s 39(2) of the Judiciary Act and s 19B(3)(b) of the Crimes Act 1914, the District Court has jurisdiction to hear an appeal by a person dealt with under s 19B against their finding of guilt and by the CDPP against the order made. Section 68(2) has the same effect. This is so because, as the definition of "sentence" includes an order under s 10 of the Sentencing Procedure Act and s 10(5) of that Act enables an appeal by a person subject to such an order, the District Court is conferred with a "like" jurisdiction in relation to orders under s 19B of the Crimes Act 1914 (see Luscombe at [86]). 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. 4. Even if an appeal under the CAR Act to the District Court from the Local Court's disposition of a prosecution of a federal offence is itself a "proceedings in a State ... before a court of summary jurisdiction in respect of a federal offence" within the meaning of s 20BQ(1) or if the power is exercisable via s 28(2) of the CAR Act, the CDPP nevertheless contended that, at the time of the hearing of any appeal to the District Court, the person who has been convicted in the Local Court is no longer a person "charged". It submitted that this meant that the power referred to in s 20BQ is not conferred directly, not capable of being picked up under s 68(1) or s 79(1) via s 28(2) of the CAR Act and otherwise not capable of being exercised. 5. I accept that Part 1B of the Crimes Act 1914 draws a distinction between someone who is "charged" and convicted (see for example s 17B, s19(1)). I also accept that, at the point of the exercise of the power conferred by s 20BQ, the power does not of its own terms extend to the setting aside of a conviction and is not capable of being exercised if the person concerned remains convicted. However, I do not accept that a person who has been charged and convicted ceases to be a person "charged" if, and when, the conviction is later set aside. Ultimately Senior Counsel for the CDPP accepted that was so. Thus, if, on an appeal under the CAR Act, a person's conviction had been set aside, then the power conferred by s 20BQ could then be exercised by the District Court as the appellant would then still be someone who was "charged". 6. It follows that, for the power conferred by s 20BQ to be exercised on appeal under the CAR Act, the District Court must be able to set aside the conviction imposed on the appellant. If, as in this case, the proceedings are an appeal against conviction then the District Court is conferred with express power under s 20(1) of the CAR Act to do so. By the operation of either or both of s 68(1) and s 79(1) of the Judiciary Act 1903 that power can be "picked up" and exercised in respect of a conviction imposed for a federal offence. This scenario has its limitations in that, if the appellant pleaded guilty in the Local Court, then they would need a grant of leave to appeal (CAR Act; s 12(1)) and any appeal against conviction would have to be brought within the relevant time limits (CAR Act; s 12(3) and s 13). 7. However, can the power conferred by s 20BQ of the Crimes Act 1914 be exercised on appeal against sentence? The operation of ss 68(1) and 79(1) of the Judiciary Act 1903 is described above. Leaving aside s 3(3A) of the CAR Act there is no power conferred by the CAR Act on the District Court in a sentence appeal to set aside a conviction where the appeal only concerns sentence (Arbor). It follows that, on a sentence appeal under Division 1 of Part 3 of the CAR Act, no power to set aside a conviction for an offence is conferred on the District Court that can picked up and applied by either or both s 68(1) and s 79(1) of the Judiciary Act to a federal offence. It follows that the power conferred by s 20BQ of the Crimes Act 1914 cannot be exercised on a sentence appeal under Division 1 of Part 3 of the CAR Act. 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. 1. 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