Garay v The Queen - [2021] ACTCA 30

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Garay v The Queen
Citation:	[2021] ACTCA 30
Hearing Date:	20 October 2021
DecisionDate:	20 October 2021
Before:	Elkaim J
Decision:	See [29]
Catchwords:	APPEAL – APPEAL FROM SUPREME COURT – CRIMINAL LAW – Application – application for a stay on conviction before sentence
Legislation Cited:	Supreme Court Act 1933 (ACT) s 37J
Cases Cited:	AK v The State of Western Australia [2008] HCA 8; 232 CLR 438 R v De Marchi [1983] 1 VR 619 R v Garay (No 3) [2021] ACTSC 215 Wilson v The Queen [2016] ACTCA 56
Parties:	John Paul Garay ( Applicant) The Queen ( Respondent)
Representation:	Counsel S McLaughlin ( Applicant) A Williamson ( Respondent)
Solicitors Legal Aid ACT ( Applicant) Director of Public Prosecutions ( Respondent)
File Number:	ACTCA 43 of 2021
Decision under appeal:	Court: ACT Supreme Court Before: Loukas-Karlsson J Date of Decision: 31 August 2021 Case Title: R v Garay (No 3) Citation: [2021] ACTSC 215

ELKAIM J:

I am sitting in this matter as a single judge pursuant to s 37J of the Supreme Court Act 1933 (ACT).

This began as a most unusual application. This is because it sought a stay of orders that have not yet been made. The Crown pointed out this oddity in its written submissions. Mr McLaughlin, who appears for the applicant, accordingly made an application to amend the orders sought. The amendment was not opposed. The result is that the order that the applicant now requests is:

A stay of proceedings before the Supreme Court pending the Court of Appeal’s decision in ACTCA 34 of 2021.

The application is supported by an affidavit of Ms Solitaire Zahnleiter, affirmed on 5 October 2021. Ms Zahnleiter is a solicitor employed by Legal Aid ACT and has the carriage of the matter. Her affidavit does no more than relate some relevant dates and annex the notice of appeal.

Notwithstanding the change to the application the Crown maintained its opposition to the application. The background is as follows.

The applicant came to trial before Loukas-Karlsson J on 7 June 2021. It was a ‘judge alone’ trial which concluded on 25 June 2021. Her Honour’s decision was handed down on 31 August 2021 (R v Garay (No 3) [2021] ACTSC 215). Her Honour acquitted the applicant on 10 counts in the indictment but found him guilty of the remaining 8 counts.

A notice of appeal against the convictions was filed on 22 September 2021.

Sometime after delivery of judgment the matter was set down for a sentence hearing on 22 October 2021.

The application before me was filed on 6 October 2021. Besides the amended order set out above, the application also seeks a grant of bail. The applicant is presently on bail, which is perhaps surprising having regard to the seriousness of the offences for which he has been convicted. I was informed that there are particular subjective circumstances that gave rise…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Garay v The Queen

Details

AGLC: Garay v The Queen [2021] ACTCA 30
Case: [2021] ACTCA 30
Decision Date

CaseChat Overview and Summary

This matter concerned an application by John Paul Garay (the applicant) for a stay of proceedings before the Supreme Court of the Australian Capital Territory, pending the decision of the ACT Court of Appeal in a related matter. The application was opposed by the Crown. The applicant had previously been tried by Loukas-Karlsson J, who acquitted him on 10 counts but found him guilty on 8 counts. A notice of appeal against these convictions was subsequently filed. The application before the court also sought bail, though the applicant was already on bail.

The primary legal issue before the court was whether exceptional circumstances existed to justify granting a stay of proceedings before sentencing, or alternatively, whether the appeal would be rendered nugatory if a stay were not granted. The applicant argued that the strength of his appeal, particularly concerning the alleged insufficiency of the trial judge's reasons for conviction, constituted exceptional circumstances. The Crown maintained its opposition, contending that the reasons provided by the trial judge, while brief in parts, were not so deficient as to warrant a stay.

The court considered the principles established in cases such as *R v De Marchi* and *Wilson v The Queen*, which generally hold that a stay of sentence should not be ordered merely because an appeal against conviction has been commenced, unless exceptional circumstances are present. The applicant sought to draw parallels between the trial judge's reasons in this case and those criticised in *AK v The State of Western Australia*, arguing that the reasons were insufficient and amounted to a substantial miscarriage of justice. However, the court found that while the applicant's submissions regarding the defects in the reasons for decision, if correct, would present a strong case on appeal, the Crown's counterarguments were also valid. The court concluded that this contest did not provide a sufficient basis to deem the circumstances exceptional or to justify a stay.

In exercising its discretion, the court also took into account that the applicant was on bail and that the Crown would not oppose the continuation of bail following the sentencing hearing. Furthermore, the court noted the likely substantial period between the sentencing hearing and the final sentencing decision, and that there would be no bar to the applicant applying for bail following the imposition of sentences. Ultimately, the court was not satisfied that exceptional circumstances existed to justify a stay or that the appeal would be rendered nugatory. Accordingly, the application was dismissed.

Orders