Application by Christopher Cranney pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW)

By an application filed on 11 February 2021, the applicant, Mr Christopher Cranney, seeks, pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act), an inquiry with respect to three convictions for offences under Commonwealth law.

On 13 April 2015, the applicant was charged with five counts. A trial was conducted in the District Court of New South Wales by a jury between 13 April and 9 June 2015.

The jury returned not guilty verdicts for counts 1 and 3. The jury returned guilty verdicts for counts 2, 4 and 5. Count 2 was a breach of ss 11.5(1) and 307.11(1) of the Criminal Code 1995 (Cth) (Criminal Code). The indictment for count 2 was as follows:

The fourth and fifth counts were in breach of s 141.1(3) of the Criminal Code. The indictment provided as follows for the two counts:

The applicant was sentenced to a term of imprisonment of 14 years, with a non-parole period of 8 years 9 months, commencing 12 May 2014: R v Christopher Phillip Cranney; R v Huy Bao Van Huynh [2015] NSWDC 276.

The applicant and his co-accused, Mr Huy Huynh, appealed against their convictions pursuant to s 5 of the Criminal Appeal Act 1912 (NSW). The Court of Criminal Appeal dismissed the appeal: Cranney v R; Huynh v R [2017] NSWCCA 234. There was no appeal on sentence.

The applicant applied for review of the convictions pursuant to s 78 of the Act. On 11 February 2022, the applicant filed two documents titled “Affidavit”, although much of the content can better be described as written submissions.

Section 78(2) of the Act requires that the Registrar of the Criminal Division of the Supreme Court cause a copy of the application to be given to the Attorney General for New South Wales.

On 28 April 2021, the Crown Solicitor for New South Wales sent a communication to the Registrar indicating that she formed the view that the Attorney General for New South Wales is not the proper respondent in this matter, and that the proper respondent is the Crown in right of the Commonwealth, who brought the charges against the applicant. The Crown Solicitor had directed the matter to the Australian Attorney-General’s Department.

On 16 June 2021, the Attorney-General of the Commonwealth filed written submissions to the effect that the application should be refused.

On 22 June 2021, the applicant filed a document titled “Criminal Appeal Review (CAR) Response”, which essentially contained written submissions in reply to the Attorney-General’s submissions.

On 9 December 2021, the legal representatives for the Attorney-General of the Commonwealth sent a communication to the Registrar noting that the Court of Appeal had handed down its decision in Huynh v Attorney General (NSW) (2021) 396 ALR 422; [2021] NSWCA 297 (Huynh) one day earlier. The letter stated:

On 24 January 2022, the Registrar received a communication from Ms Brook Sheens, who the applicant had requested to be copied in correspondence. Ms Sheens said that:

The relevant legislative provisions are ss 78 and 79 of the Act, which is under Pt 7 of that Act. Section 78(1) provides:

Section 79 provides:

The power conferred by s 79 of the Act is to be exercised by the Chief Justice or Judge of the Supreme Court as persona designate exercising administrative power, not as a judicial officer of the court exercising judicial power, and that non-judicial power is not incidental to the exercise of judicial power: Huynh at 432 [39], 444 [83] (Basten JA with whom Bathurst CJ and Gleeson JA agreeing), 487-488 [265]-[269] (Payne JA).

In Potier – Application for an inquiry into conviction pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 [2018] NSWSC 768 (Potier), I described the nature of an application under ss 78 and 79 of the Act as follows:

The test to be applied in determining an application pursuant to s 78 was set out by Johnson J in Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 (Holland). His Honour stated, at [6], that:

Justice Johnson elaborated on what constitutes a “doubt or question as to guilt” as follows:

It should be noted that since the judgment of Johnson J in Holland, the Court of Appeal has eschewed reliance on language such as “unease or disquiet” when considering the test in s 79(2) of the Act. In Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 (Sinkovic), Basten JA (with whom Bathurst CJ, Beazley P, as Her Excellency then was, Price and Beech-Jones JJ, as his Honour then was, agreed) stated at 799 [65]:

In Potier, I summarised the relevant authorities on the construction of s 79 of the Act at [13]-[14] as follows:

It is necessary for a decision-maker, before proceeding to exercise a power, that they are satisfied that the law confers upon them jurisdiction to exercise that power.

In Huynh, a majority of the Court of Appeal held that s 79 of the Act is not available with respect to a conviction or sentence for an offence against a law of the Commonwealth heard and determined in a New South Wales court. This is because neither a State court nor an officer of the State have power under State law to vary or affect the conviction of a person for an offence under a law of the Commonwealth, unless authority is conferred by a law of the Commonwealth.

The majority held that as s 79 of the Act confers non-judicial power on the Chief Justice or Judge of the Supreme Court, ss 68(1) or 79 of the Judiciary Act 1903 (Cth) does not have the effect of adopting and applying Pt 7 of the Act to federal offences. No other law of the Commonwealth purports to apply the provisions in s 79 of the Act to federal offences.

The majority also noted that a Commonwealth law cannot, at least without the consent of the relevant judicial officer, impose an administrative function on a Judge of a State Supreme Court. No such consent is facilitated under a legislative provision nor has consent been formally sought or provided.

Accordingly, the Court of Appeal made the following declaration:

The holding by the majority in Huynh is directly on point to this application. Like Mr Huynh in that case, the applicant here was charged and convicted with only offences against the Criminal Code, which is a law of the Commonwealth Parliament. It follows that, in these circumstances, there is no power to determine the merits of the application. It is, therefore, not necessary, nor in my view appropriate, to consider or otherwise deal with the application. I make no comment on the merits of the application.

Ms Sheens noted that Huynh is currently the subject of a High Court appeal. Special leave to appeal has been granted by the High Court from the Court of Appeal’s decision: Attorney-General (Cth) v Huynh [2022] HCATrans 91. If Huynh is overturned by the High Court or a later Court of Appeal, then the applicant’s application may potentially be the subject of further consideration or could be reactivated by a letter incorporating the material already provided: Sinkovic at 802 [77] (Basten JA with whom Bathurst CJ, Beazley P, as Her Excellency then was, Price and Beech-Jones JJ, as his Honour then was, agreed).

But unless that occurs, I am bound to follow the Court of Appeal’s decision in Huynh because it represents current law. This was made clear by Moffitt P in Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 177 when his Honour said:

Accordingly, the application of Christopher Cranney filed on 11 February 2021 pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) is dismissed for want of jurisdiction.