Section 14 - Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Published by Geoff Harrison | 12 July 2023

The rules of evidence do not apply in an application for discharge under s14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020: Jones v Booth [2019] NSWSC 1066 at [53]. The following is an extract from the Local Court Bench book (30-040):

R v HW [2017] NSWLC 25 at [69] states:

It is recognised by appellate courts that the determination by a magistrate, whether to divert [a defendant] … requires a weighing of different interests, including the interest of an accused in receiving treatment and the public interest in those charged with criminal offences being dealt with according to law. Issues impacting on the magistrate’s determination include the seriousness of the offence, issues of community safety, the limited duration of a section 32 order (6 months)*, the efficacy and specificity of a treatment plan, and issues of deterrence in sentencing (refer DPP v El Mawas (2006) 66 NSWLR 93; Quinn v DPP [2015] NSWCA 331; DPP v Saunders [2017] NSWSC 760).

* An order under s 14 order may be made for up to 12 months: s 16(1).

The Act requires the inquiry to be a three-stage process:

• first, to decide whether, as a question of fact, the defendant comes within the definition pursuant to s 12

• second, to decide, as a matter of discretion whether to deal with the matter otherwise than according to law. In coming to a conclusion the magistrate will need to consider not only the material before the court, but must have regard to the public interest (see also s 15). Regard must be had to the public interest in the defendant having treatment mandated by the court, and the public interest in having the matter dealt with according to law

• third, once it has been determined that it is more appropriate to deal with the defendant in accordance with s 12, the magistrate must determine which of the actions set out in ss 13 and 14 should be taken.

The decisions of DPP v Saunders [2017] NSWSC 760 by His Honour R A Hulme J at [49], emphasises the requirement and importance of not only having a treatment plan in place in order for the court to discharge a person under these provisions but also that; the court identify a particular person upon whom, or a particular place at which, the defendant is required to attend for assessment and/or treatment.

The decision of Huynh v R [2021] NSWCCA 148 (9 July 2021) is set out below. In this case, His Honour Beech-Jones J, answered a number of questions under a stated case from the District Court, relating to appeals from the Local Court to the District Court and the District Court's jurisdiction to hear s20BQ Crimes Act 1914 (Cth) and s14 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 applications; where a conviction has been recorded. The Court held that the District Court can only exercise any function that the Local Court could have exercised - s28(2) Crimes (Appeal and Review) Act 2001.

Hence, where a person has been convicted of an offence, the District Court would not have jurisdiction to hear a discharge application (ie. s20BQ or s14) unless the District Court can also set aside the conviction. The outcome from this decision is that, if a person pleaded guilty after an unsuccessful s14s/s20BQ application and is convicted, then a conviction appeal must filed along with an application for leave to appeal, in order to make a further s20BQ/s14 application. If the person pleaded not guilty but is found guilty and convicted, a conviction appeal only is required to be filed. If the person pleaded guilty or not guilty and the s14/s20BQ is unsuccessful and no conviction is recorded, then a severity appeal only is required to be filed in order to make a fresh s14/s20BQ application in the District Court.

Cases:

• R v Reid [2023] NSWDC 161

• Quinn v Director of Public Prosecutions [2015]

• Director of Public Prosecutions v Sami El Mawas [2006] NSWCA 154

• Mo v Director of Public Prosecutions [2023] NSWDC 27

• Anthony Nicholas Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159

• R v Israil [2002] NSWCCA 255

• Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA

12 DEFENDANTS WITH MENTAL HEALTH IMPAIRMENTS OR COGNITIVE IMPAIRMENTS

(1) A Magistrate may make an order under this Division or adjourn proceedings if it appears to the Magistrate that the defendant has (or had at the time of the alleged commission of the offence to which the proceedings relate) a mental health impairment or a cognitive impairment, or both.

(2) The Magistrate may take action under this Division only if it appears to the Magistrate, on an outline of the facts alleged in the proceedings or other evidence the Magistrate considers relevant, it would be more appropriate to deal with the defendant in accordance with this Division than otherwise in accordance with law.

(3) This Division does not apply if the defendant is a mentally ill person or a mentally disordered person.

14 ORDERS MAGISTRATE MAY MAKE

(1) A Magistrate may make an order to dismiss a charge and discharge the defendant--

(a) into the care of a responsible person, unconditionally or subject to conditions, or

(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment, treatment or the provision of support for the defendant's mental health impairment or cognitive impairment, or

(c) unconditionally.

(2) An order to dismiss a charge against a defendant does not constitute a finding that the charge against the defendant is proven or otherwise.

15 CONSIDERATIONS OF MAGISTRATE WHEN MAKING ORDER

In deciding whether it would be more appropriate to deal with a defendant in accordance with this Division, the Magistrate may consider the following--

(a) the nature of the defendant's apparent mental health impairment or cognitive impairment,

(b) the nature, seriousness and circumstances of the alleged offence,

(c) the suitability of the sentencing options available if the defendant is found guilty of the offence,

(d) relevant changes in the circumstances of the defendant since the alleged commission of the offence,

(e) the defendant's criminal history,

(f) whether the defendant has previously been the subject of an order under this Act or section 32 of the Mental Health (Forensic Provisions) Act 1990 ,

(g) whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan,

(h) whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public,

(i) other relevant factors.

16 FAILURE OF DEFENDANT TO COMPLY WITH CONDITION OF ORDER

(1) If a Magistrate suspects that a defendant has failed to comply with a condition of an order under section 14, the Magistrate may, within 12 months of the order being made, order the defendant to appear before the Magistrate.

(2) If the defendant fails to appear, the Magistrate may--

(a) issue a warrant for the defendant's arrest, or

(b) authorise an authorised officer to issue a warrant for the defendant's arrest.

(3) If at the time the Magistrate proposes to make an order under subsection (1) the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately--

(a) issue a warrant for the defendant's arrest, or

(b) authorise an authorised officer to issue a warrant for the defendant's arrest.

(4) If a Magistrate discharges a defendant subject to a condition under an order, and the defendant fails to comply with the condition within 12 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged.

17 REPORTS FROM TREATMENT PROVIDERS

(1) Despite any law, a person who is, in accordance with an order under section 14, to assess another person's mental condition or provide treatment to another person (a

"treatment provider" ) may report a failure to comply with a condition of the order by the other person to any of the following--

(a) an officer of the Department of Communities and Justice,

(b) another person or body prescribed by the regulations.

(2) A treatment provider may include in the report information that the treatment provider considers is relevant to the making of a decision in relation to the failure to comply with the condition.

(3) The report is to be in the form approved for the time being by the Secretary of the Department of Communities and Justice.

______________________________________________________________________________________

Director of Public Prosecutions (NSW) v Saunders [2017] NSWSC 760 (16 June 2017)

Supreme Court

New South Wales

Case Name:

Director of Public Prosecutions (NSW) v Saunders

Medium Neutral Citation:

[2017] NSWSC 760

Hearing Date(s):

1 June 2017

Decision Date:

16 June 2017

Jurisdiction:

Common Law

Before:

R A Hulme J

Decision:

1. Appeal allowed.

2. Set aside the order of the magistrate made on 30 August 2016 at Central Local Court dismissing the charge against the first defendant of assault contrary to s 61 of the Crimes Act 1900.

3. Remit the matter to the Local Court to be dealt with according to law.

4. The first defendant is to pay the plaintiff's costs of and incidental to these proceedings.

5. The first defendant to be granted a certificate pursuant to s 6(1) of the Suitors’ Fund Act 1951.

Catchwords:

APPEAL - appeal from Local Court – where magistrate dismissed charges pursuant to s 32(3)(b) Mental Health (Forensic Provisions) Act – where order in terms that the person attend a psychiatrist/psychologist – “specified” in s 32(3)(b) requires that a magistrate name a particular place or a particular person – consideration of giving effect to the enforcement provisions and the object and purpose of Part 3 of the Act – appeal allowed

Legislation Cited:

Crimes Act 1900 (NSW) s 61

Crimes (Appeal and Review) Act 2001 (NSW) s 56(1)(c)

Crimes Legislation Amendment Act 2002 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Interpretation Act 1987 (NSW) s 33

Mental Health (Criminal Procedure) Amendment Act 2005 (NSW)

Mental Health (Forensic Provisions) Act 1990 (NSW) Part 3, ss 32, 32A

Suitors’ Fund Act 1951 s 6(1)

Cases Cited:

Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159

Director of Public Prosecutions (NSW) v Albon [2000] NSWSC 896

Director of Public Prosecutions v El Mawas [2006] NSWCA 154; 66 NSWLR 93

Khalil v His Honour, Magistrate Johnson [2008] NSWSC 1092

Mantell v Molyneux [2006] NSWSC 955; 68 NSWLR 46

Perry v Forbes (Supreme Court of New South Wales (Smart J), 21 May 1993, unrep)

Quinn v Director of Public Prosecutions (NSW) [2015] NSWCA 331

Texts Cited:

Mary Spiers, "Summary disposal of criminal offences under s 32 Mental Health (Criminal Procedure) Act 1990: Division of cognitively impaired or mentally-ill defendants", (2004) 16(2) Judicial Officers' Bulletin 9

Tom Gotsis and Hugh Donnelly, "Diverting mentally disordered offenders in the NSW Local Court" Monograph 31, March 2008

New South Wales Law Reform Commission, "People with cognitive and mental health impairments in the criminal justice system – Diversion", Report 135, 2012, Ch 9, "Diversion in the Local Court – s 32"

Category:

Principal judgment

Parties:

Director of Public Prosecutions (NSW) (Plaintiff)

Keith Saunders (First Defendant)

Local Court of New South Wales (Second Defendant)

Representation:

Counsel:

Mr D Kell SC with Mr M Pulsford (Plaintiff)

Mr C Taylor (First Defendant)

Solicitors:

Solicitor for Public Prosecutions

CBD Criminal Defence Lawyers

File Number(s):

2016/377354

Decision under appeal:

Court or Tribunal:

Local Court

Date of Decision:

30 August 2016

Before:

Schurr LCM

File Number(s):

2016/66246

JUDGMENT

1. HIS HONOUR: The issue in these proceedings is whether in discharging a defendant pursuant to s 32(3)(b) of the Mental Health (Forensic Provisions) Act 1990 (NSW) it is necessary for a magistrate to nominate a particular place or a particular person the defendant is to attend for assessment of the defendant’s mental condition and/or treatment.

2. The Director of Public Prosecutions contends that the legislation requires this and that a magistrate was in error in not having done so. The first (and active) defendant, Mr Keith Saunders, contends that the magistrate sufficiently complied with the legislation. (The second defendant, the Local Court of New South Wales, has filed a submitting appearance.)

3. In my view, the Director's contention should be upheld.

Background

4. On 1 March 2016 Mr Saunders was charged with an offence of assault, contrary to s 61 of the Crimes Act 1900 (NSW). (He was also charged with an offence that was contrary to the Road Rules 2014 (NSW) but it is presently irrelevant.)

5. The charge arose from an incident that was alleged to have occurred in Surry Hills on 27 February 2016. Mr Saunders was alleged to have spat a large amount of phlegm and saliva onto the face of a 3 month old infant who was being pushed in a pram by her grandmother. The incident occurred for no apparent reason. Mr Saunders was walking in the opposite direction past the child and her grandmother.

The proceedings

Friday 26 August 2016

6. The matter came before Central Local Court on Friday 26 August 2016. At this time Mr Saunders was due to be released on parole for an unrelated matter on Tuesday 30 August 2016.

7. Mr Saunders' solicitor made an application that the matter be dealt with pursuant to s 32 of the Mental Health (Forensic Provisions) Act. He relied upon a report by a psychologist, Mr Patrick Sheehan, who diagnosed Mr Saunders with substance use disorder and borderline personality disorder. The psychologist concluded that the disorders contributed to the offending and proposed that Mr Saunders satisfied the criteria for a mental health condition under s 32. He also recorded that Mr Saunders is not a “mentally ill person” under the Act.

8. Mr Sheehan concluded his report as follows:

“Given that it remains unclear as to where Mr Saunders will reside after his release from custody on the 30 August 2016 (he has no release address and seeks accommodation in either the A.C.T or Newcastle), a specific mental health plan is not possible. What can be stated is that he requires treatment for affective regulation, borderline personality and substance use disorder. His condition is not in the acute phase, but remain present and relapse is entirely realistic unless he can receive suitable treatment. All of these can be targeted using cognitive behavioural therapy. The affective regulation and personality pathology can be addressed using Dialectical Behaviour Therapy. The RUSH program is an example of this form of treatment. The substance use disorder can be approached with psychoeducation and relapse prevention planning. To commence this process, Mr Saunders can obtain a Mental Health Care Plan from his a GP, providing a referral to a psychologist and up to 10 sessions covered by Medicare. I would recommend session of at least weekly frequency. Realistically, Mr Saunders is unlikely to entirely resolve his entrenched personality-based issues within ten sessions and treatment will need to be ongoing of at least six months duration. The treating psychologist can apply to have treatment extended in cases where this is therapeutically indicated.

There may be a role for psychopharmacological adjunct to assist in mood stabilisation. This can be investigated by a referral to a psychiatrist by a GP.”

9. The solicitor told the magistrate that it had not been ascertained where Mr Saunders would be living when he was released from custody. There was a proposal that Mr Saunders would live with his sister in Canberra while on parole and he would attend upon a named general practitioner and seek a referral to a psychologist for therapy in relation to his mental condition and to a psychiatrist for pharmacological assistance. This was in accordance with what was suggested in the report of Mr Sheehan. The proposal to live outside of New South Wales and in the Australian Capital Territory was subject to approval by authorities in both jurisdictions. It was indicated that it was expected that such approval would be forthcoming. If necessary, it was proposed that Mr Saunders would live in Newcastle with his brother in the meantime.

10. The police prosecutor opposed the application on two bases. First, it was submitted that the nature and seriousness of the offence made it inappropriate to deal with the matter by discharge under s 32. Secondly, it was submitted that there was no effective treatment plan before the court and this rendered a conditional discharge incapable of enforcement.

11. The magistrate delivered ex tempore reasons, in the course of which she acknowledged the opposition by the prosecutor before continuing:

"[H]owever, I am satisfied that Mr Saunders will be supervised by Corrections when he is released on the other matter and it is likely that he will be residing in the ACT because everyone agrees he needs to get away from Redfern and I can it is evidenced [sic] that his sister will accommodate him and ensure that he attends counselling."

12. Her Honour announced her inclination to make an order pursuant to s 32:

"I am satisfied that there is sufficient plan in this report to constitute a plan and given the support that is evidenced by Correctives and his sister, I think it is appropriate to deal [with] the matter under s 32(3)(a), 32 (3)(b), but with unusual conditions because we are not positive that he is going to be going to Canberra immediately. That condition would be to attend the GP within three days of commencing to reside in the ACT."

13. There was then some discussion about the alternative proposal that Mr Saunders live in Newcastle until there was approval for him to live in Canberra. In the end, the magistrate resolved to defer making an order under s 32. She refused bail and adjourned the matter to the following Tuesday.

Tuesday 30 August 2016

14. The following Tuesday Mr Saunders’ solicitor informed the magistrate that the matter had not progressed; there had not yet been a decision as to whether Mr Saunders could live in Canberra. The solicitor asked that the s 32 discharge be subject to conditions that wherever Mr Saunders was to relocate, within three or five days he would attend upon a general practitioner in that area and seek the medical care that had been outlined the previous Friday. The solicitor also reminded the magistrate that Mr Saunders would be subject to parole supervision for the following five months.

15. The police prosecutor reiterated opposition to the proposal on the basis that there was no effective treatment plan before the court.

16. The magistrate again gave ex tempore reasons. She acknowledged the opposition by the prosecutor and the submissions made in support of it. She also noted the fact that Mr Saunders would be subject to parole supervision. Her Honour’s reasoning that is presently pertinent was then expressed as follows:

“When I consider the mindset of Mr Saunders at the time and that it is in the community’s interest that he be directed to attend for counselling and that I consider the nature of the offences, I am satisfied that even if it is not a complex report or plan, that it is a plan that is clear and that it is a plan that requires Mr Saunders to attend [a] mental health facility within three days of release on parole and to obtain a mental health care plan serious [sic -series] of counselling sessions and to attend them and to attend a psychiatrist for medication review, that this is as substantial as any other plan.”

17. Her Honour then made an order in the following terms:

“I propose to dismiss the charge, that the assault under s 32(3)(b) on the condition that he attend for counselling and medication and to attend within three days of release to parole, that he obtain and complete a mental health care plan series of counselling sessions and that he attend a psychiatrist for a medication review.”

18. The order entered on the Local Court's computerised record, JusticeLink (which the parties agreed was the form of the order to which I should have regard), is in the following terms:

“Dismissed S32(3)(b) - Discharged to attend for assessment of the defendant's mental condition or treatment or both

Dismissed with the following conditions: Subject to conditions - 1. Take prescribed medication/attend counselling/treatment in accordance with medical advice/nominated psychiatrist/psychologist and attend within 3 day of release to parole.

2. To obtain and complete a mental health care plan serious [sic] of counselling sessions.

3. Attend a psychiatrist for a medication review.”

Proceedings in this Court

19. By an amended summons, the Director of Public Prosecutions appeals pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) against the order of the magistrate dismissing the charge and discharging Mr Saunders. The Director's contention is that the magistrate erred in law in:

"Dismissing, pursuant to s 32(3)(b) of the [Mental Health (Forensic Provisions) Act], the charge against the first defendant of common assault contrary to s 61 of the Crimes Act without discharging the first defendant on the condition that he attend on a person or at a place specified by the Magistrate for the assessment of the first defendant's mental condition or treatment or both."

Statutory provisions

20. Section 32 appears in Part 3 of the Mental Health (Forensic Provisions) Act and provides, relevantly:

"32 Persons suffering from mental illness or condition

(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:

(a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate):

(i) developmentally disabled, or

(ii) suffering from mental illness, or

(iii) suffering from a mental condition for which treatment is available in a mental health facility,

but is not a mentally ill person, and

(b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law,

the Magistrate may take the action set out in subsection (2) or (3).

(2) The Magistrate may do any one or more of the following:

(a) adjourn the proceedings,

(b) grant the defendant bail in accordance with the Bail Act 2013,

(c) make any other order that the Magistrate considers appropriate.

(3) The Magistrate may make an order dismissing the charge and discharge the defendant:

(a) into the care of a responsible person, unconditionally or subject to conditions, or

(b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant’s mental condition or treatment or both, or

(c) unconditionally.

(3A) If a Magistrate suspects that a defendant subject to an order under subsection (3) may have failed to comply with a condition under that subsection, the Magistrate may, within 6 months of the order being made, call on the defendant to appear before the Magistrate.

...

(3D) If a Magistrate discharges a defendant subject to a condition under subsection (3), and the defendant fails to comply with the condition within 6 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged.

... " (Emphasis added)

21. Section 32A provides:

“32A Reports from treatment providers

(1) Despite any law, a person who is to assess another person’s mental condition or provide treatment to another person in accordance with an order under section 32 (3) (a treatment provider) may report a failure to comply with a condition of the order by the other person to any of the following:

(a) an officer of Community Offender Services, Probation and Parole Service,

(b) an officer of the Department of Justice,

(c) any other person or body prescribed by the regulations.

(2) A treatment provider may include in a report under this section any information that the treatment provider considers is relevant to the making of a decision in relation to the failure to comply concerned.

(3) A report provided under this section is to be in the form approved for the time being by the Director-General of the Attorney General’s Department.”

Submissions for the defendant

22. The essence of the defendant's argument was that it is not incumbent upon a magistrate to name a particular person or place upon whom, or at which, a person was to attend for assessment or treatment because the statute did not say that. The provision was said to permit a broad discretion.

23. It was submitted that there was compliance with the requirement to order that the defendant "attend on a person ... specified by the Magistrate" by virtue of the requirement that he "attend a psychiatrist for a medication review" and that there was compliance with the requirement to order that he "attend at a place specified by the Magistrate" by virtue of the requirement that "he attend for counselling and medication and to attend within three days of release to parole". (DWS [11]-[12])

24. It was submitted that "the place" Mr Saunders was ordered to attend is, presumably, "such place at which counselling could be provided, and such place where medication could be prescribed (presumably by the counsellor and GP of his choice)". (DWS [13])

25. It was also submitted that a corollary of the orders of the magistrate is that Mr Saunders would contravene the conditions if he did not attend within three days a place at which counselling could be received, and within three days attend a place at which medication could be prescribed, and within that time attend upon a psychiatrist for a medication review within six months of 30 August 2016. (DWS [15])

26. Reliance was also placed upon a number of dictionary definitions of “specify” (e.g. “to give a specific character to”) and the Latin derivative, “species” (e.g. “a group of individuals having some common characteristics or qualities; distinct sort or kind”).

27. The defendant submitted that the provisions in s 32 and s 32A relating to a magistrate dealing with a failure to comply with a condition imposed under s 32(3) and a treatment provider reporting such a failure did not assist with the interpretation of “specified” in s 32(3)(b). (T11)

28. It was acknowledged that in a more serious case, the circumstances might warrant the naming of a particular person or place, but in a case such as the present it was not necessarily required. On this reasoning, a case referred to by the plaintiff, Director of Public Prosecutions (NSW) v Albon [2000] NSWSC 896, was said to be distinguishable. Another basis for distinguishing that case was that Mr Saunders would have the benefit of being under parole supervision for a period of five months after his release, whereas Mr Albon was described by Dowd J as being abandoned to the community generally. (T12)

29. Concluding his oral submissions, counsel for the defendant said that busy magistrates were given a broad discretion in applying the provisions of s 32. In more serious cases it may be appropriate to nominate persons or places for assessment and/or treatment of a defendant's mental condition but in other cases it may be considered sufficient for the magistrate to impose conditions in more general terms such as occurred in this case. After all, he submitted, it was not uncommon for conditions to be placed upon defendants ordered to enter into good behaviour bonds under the Crimes (Sentencing Procedure) Act 1999 (NSW) requiring attendance upon a psychologist or psychiatrist without necessarily naming a particular practitioner. (T14-17)

Case law

30. None of the case law, so far as the researches of counsel could discover, deals with the precise issue raised for consideration in this case. However, the following cases are of some assistance in understanding the purpose and object of the statutory provision (s 33 of the Interpretation Act 1987 (NSW)) as well as the manner in which it should be applied.

31. Director of Public Prosecutions (NSW) v Albon was said by the Director to be analogous. In that case, the Director sought to quash a s 32 order made in relation to a quite serious charge of malicious wounding. The defendant was under the care of the Public Guardian but there was no evidence of any proposed treatment plan. The magistrate dismissed the proceedings under s 32 on the condition that the defendant kept in touch with the Public Guardian and any case worker. In quashing the order, Dowd J said in an ex tempore judgment:

"[23] Under s 32(3), her Worship was obliged, whether there were conditions or not, to ensure that the defendant was placed in the care of a responsible person, not only as a matter of law under the section but particularly in the circumstances of the seriousness of this case, it was inappropriate to abandon the defendant to the community generally. The circumstances were such that Her Worship erred in the nature of the seriousness of what had occurred, and in the light of the development disability of the defendant to allow him to be at large without making someone responsible for him.

[24] Her Worship cast on the defendant the obligation to keep in touch with the Public Guardian and did. This does not carry out the intention of the Act which is that some person had to be responsible for the defendant in the circumstances of the charge.

...

[26] It is my view that before there can be an exercise of discretion under s 32(3)(a), the Court is obliged to arrange for there to be evidence of some sort of plan, or to obtain evidence whereby some appropriate person, be it the Public Guardian, or evidence of some available institution, before an order can be made. ...

[27] ... Her Worship has therefore erred in dismissing, either unconditionally or on a condition that the defendant merely keep in contact with the persons who she specified, and that her Worship should have ... ensured that the matter was adjourned if there was not enough evidence before her until that evidence could be placed before her.

[28] Alternatively, her Worship should have worked out with the case worker before she made the appropriate conditions, to place the defendant in the care of the Public Guardian, and to enunciate the conditions to ensure that the defendant was not at large, leaving it to his initiative to make contact.

[29] The absence of appropriate conditions ... placed Her Worship in a difficult position. However, the Act contemplates the placing of conditions on people such as the defendant under someone's responsibility, before a charge can be dismissed."

32. In Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159, Howie J dismissed an appeal from the refusal of a magistrate to deal with a case under s 32. He noted (at [17]) that a magistrate considering an application under that provision was performing "a balancing exercise; weighing up, on one hand, the purposes of punishment and, on the other, the public interest in diverting the mentally disordered offender from the criminal justice system". He described this as "a discretionary judgment upon which reasonable minds may reach different conclusions in any particular case". He also observed that the discretion "cannot be exercised properly without due regard being paid to the seriousness of the offending conduct".

33. The application of s 32 of the Mental Health (Forensic Provisions) Act was discussed in some detail in Director of Public Prosecutions v El Mawas [2006] NSWCA 154; 66 NSWLR 93. McColl JA explained (at 109-110 [75]-[80]) that when an application is made for a defendant to be dealt with under s 32, a magistrate is required to "make at least three decisions":

1 Whether the defendant is eligible to be dealt with under s 32. That is the case if it appears that the defendant is not a mentally ill person but who is (or was at the time of the alleged offending) developmentally disabled, or suffering from a mental illness, or suffering from a mental condition for which treatment is available in a mental health facility: s 32(1)(a).

2 Having regard to the facts alleged, or such other evidence as the magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of Part 3 than otherwise in accordance with the law: s 32(1)(b).

3 Once it has been determined that it is more appropriate to deal with the defendant under s 32, which of the actions set out in sub-ss (2) or (3) should be taken.

34. There are two cases which referred to the need for there being "an effective treatment plan". In Perry v Forbes (Supreme Court of New South Wales (Smart J), 21 May 1993, unrep), which was cited by the police prosecutor to the magistrate in the present case, Smart J said that there needed to be "an effective treatment plan and one which was likely to ensure that there would not be a repetition of the incident in question or the occurrence of some other unfavourable incident". This observation does not assist greatly in resolving the present case. His Honour did not elucidate what he considered would comprise "an effective treatment plan", although one may assume he had in mind a plan that is reasonably specific in detail.

35. In Khalil v His Honour, Magistrate Johnson [2008] NSWSC 1092, Hall J said (at [85](5)):

"In formulating the judgment for which s 32(1)(b) calls, a proposed course of treatment, including, in particular, the existence and contents of a treatment plan, may be considered and given such weight as the Magistrate considers appropriate in making that judgment ... "

36. This, again, highlights the significance of there being a "treatment plan" but does not otherwise assist as to its content and whether particular persons or places need to be nominated. Again, however, the concept of there being “a plan” signifies the need for some detail about the proposed assessment and/or treatment of the alleged offender.

37. Finally, in Quinn v Director of Public Prosecutions [2015] NSWCA 331, Basten JA (at [7]) endorsed what had been said by Adams J in Mantell v Molyneux [2006] NSWSC 955; 68 NSWLR 46 at [47]- [48] to the effect that in deciding whether to proceed by way of diversion under s 32 it was appropriate (if not required) that a magistrate have regard to the consequences of making an order under s 32(2) or (3), including the manner in which any potentially appropriate condition might be formulated and might operate. (Macfarlan JA agreed (at [11]); Adamson J stated as much at [31].) While not stated explicitly in the legislation, I infer that, like in the cases just referred to, it was contemplated that a magistrate would be provided with a plan containing some detail as to what was proposed for assessment of the defendant’s mental condition or treatment or both.

Determination

38. It is clearly discernible from the terms of s 32 that its purpose is to allow, in appropriate cases, for accused persons with a developmental disability, a mental illness, or a mental condition for which treatment is available in a mental health facility, to be diverted from the criminal justice system. Such diversion may or may not be subject to conditions. It may be into the care of a responsible person or subject to a requirement that the person receives assessment of a mental condition and/or treatment.

39. The decision whether to divert such a person in any of the permissible ways is discretionary and is based upon a consideration of a variety of factors. Those factors include the seriousness of the alleged offence, the purposes of punishment, the public interest in diverting mentally disordered persons from the criminal justice system, and the proposed treatment plan.

40. One of the options under s 32(3) is to discharge the person "into the care of a responsible person". The provision does not explicitly require that the "responsible person" be named. But it is inescapable that in exercising the discretion to discharge a person in this way under s 32(3)(a) the "responsible person" would have been identified in the evidence and specifically nominated in the magistrate's order.

41. The defendant's submissions in this case are to the effect that when discharging a person under s 32(3)(b) upon a condition that the defendant attend on a person or at a place specified by the magistrate, there can be compliance by specifying a broad class of such persons or places. Thus, requiring the person to attend upon "a psychiatrist" would comply. Presumably, on this construction, requiring the person to attend "a mental health service" would also comply.

42. In my view, such a construction of the word "specified" in s 32(3)(b) does not promote the underlying purpose or object of Part 3 of the Mental Health (Forensic Provisions) Act. The Part is primarily concerned with diversion of eligible persons in appropriate cases from the criminal justice system, and thereby from the potential for criminal sanction.

43. True it is, as the defendant pointed out, that such diversion may be unconditional (s 32(3)(c) for example). But where the discharge is conditional, as under s 32(3)(b), and there are provisions relating to enforcement where there is a perceived failure to comply with conditions, it is tolerably clear that the requirement for nomination of a person or place "specified by the magistrate" requires the person or place to be identified with some precision.

44. In some cases it might not be possible to name a particular person but in those circumstances, specification of a particular place would avoid doubt: for example, a condition requiring a person to undergo assessment and/or treatment by a psychiatrist at a named mental health facility.

45. The importance of there being a regime for enforcement of s 32 orders was recognised by the insertion of s 32(3A)-(3D) by the Crimes Legislation Amendment Act 2002 (NSW). The problems of there being hitherto a lack of an enforcement facility included that many defendants failed to comply with conditions of orders where there were no ramifications; a failure to comply could mean that a defendant's behaviour deteriorated to the point where more serious offending occurred; and that as a result there was a reluctance by many magistrates to make orders under s 32: Mary Spiers, "Summary disposal of criminal offences under s 32 Mental Health (Criminal Procedure) Act 1990: Division of cognitively impaired or mentally-ill defendants", (2004) 16(2) Judicial Officers' Bulletin 9. (This explanation of the amendments was quoted with approval by the Judicial Commission of NSW, "Diverting mentally disordered offenders in the NSW Local Court" Monograph 31, March 2008, Tom Gotsis and Hugh Donnelly at p VI, fn vii, and by the New South Wales Law Reform Commission, "People with cognitive and mental health impairments in the criminal justice system – Diversion", Report 135, 2012, Ch 9, "Diversion in the Local Court – s 32" at [9.46].)

46. Section 32A was inserted by the Mental Health (Criminal Procedure) Amendment Act 2005 (NSW) and may be taken to have been intended to increase the efficacy of the enforcement facility.

47. A failure to name a particular person or a particular place renders the enforcement provisions in relation to a conditional discharge under s 32 virtually nugatory. In the present case, there is no guarantee that "a psychiatrist" who may be consulted by the defendant "for a medication review" will know that he or she is seeing the defendant pursuant to a court order. In those circumstances, there is a most unlikely prospect of such psychiatrist knowing that he or she may report a failure to comply (s 32A).

48. If there is any use in having recourse to dictionary definitions of "specified", the most apt for the context in which the word is used in s 32(3)(b) is that which appears in the Macquarie Dictionary Online, namely "to mention or name specifically or definitely; state in detail". The fact that other possible definitions of the term may be found in dictionaries is unsurprising, given that by their nature they provide meanings that might be appropriate in a variety of contexts.

Conclusion

49. I am satisfied that the learned magistrate erred by failing to identify a particular person upon whom, or a particular place at which, the defendant was required to attend for assessment and/or treatment. Simply nominating a type of person or a type of place does not comply with the provisions of s 32(3)(b) of the Mental Health (Forensic Provisions) Act.

50. In fact, the entirety of the order as entered in the Court's computerised record is so vague as to render compliance uncertain and enforcement virtually impossible. Who was to be the "nominated psychiatrist/psychologist"? Where was the defendant to "obtain and complete a mental health care plan series of counselling"? Who was the psychiatrist upon whom the defendant should attend for a medication review?

51. I fully appreciate the heavy workload of magistrates dispensing justice in the court with the highest caseload of any in this country. The defendant alluded to this in his contention that there is a very broad discretion reposing in a magistrate when it came to making orders under s 32. However, in this case the difficulty posed by the lack of sufficient information would likely have been overcome by a relatively short adjournment; a step that would not greatly have increased the magistrate's workload.

Orders

52. I make the following orders:

(1) Appeal allowed.

(2) Set aside the order of the magistrate made on 30 August 2016 at Central Local Court dismissing the charge against the first defendant of assault contrary to s 61 of the Crimes Act 1900.

(3) Remit the matter to the Local Court to be dealt with according to law.

(4) The first defendant is to pay the plaintiff's costs of and incidental to these proceedings.

(5) The first defendant to be granted a certificate pursuant to s 6(1) of the Suitors’ Fund Act 1951.

________________________________________________________

Huynh v R [2021] NSWCCA 148 (9 July 2021)

Last Updated: 13 July 2021

Court of Criminal Appeal

Supreme Court

New South Wales

Case Name:

Huynh v R

Medium Neutral Citation:

[2021] NSWCCA 148

Hearing Date(s):

21 May 2021

Date of Orders:

9 July 2021

Decision Date:

9 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] UKLawRpAC 38; [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] WALawRp 1; (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

3. 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.

4. 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.

5. 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.

6. 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.

7. 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

8. 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)?

9. 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.

10. 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.

11. 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] HCA 88; (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).

12. 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

13. 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”).

14. 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.

15. 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).

16. 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)

17. Three matters should be noted about these provisions.

18. 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.

19. 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.

20. 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

21. 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.”

22. 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.

23. 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.

24. 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.

25. 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)?

26. 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)).

27. 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.”

28. 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.

29. 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).

30. 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).

31. 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.”

32. 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.

33. 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.

34. 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.

35. 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

36. 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.”

37. 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.”

38. 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.

39. 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.

40. 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] HCA 27; (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).

41. 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)).

42. 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

43. 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).

44. 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] HCA 54; (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.

45. 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.

46. 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).

47. 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).

48. 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?

49. 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.

50. 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.

51. 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] WALawRp 1; (1956) 58 WALR 27 at 32; Boulter v Kent Justices [1897] UKLawRpAC 38; [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.

52. 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.

53. 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”.

54. 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).

55. 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?

56. 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.

57. 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

58. I propose that the questions posed as set out in [8] above be answered as follows:

(1) No;

(2) Yes;

(3) No;

(4) Yes.

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.