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:

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

1. 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.

1. 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.

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

1. 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.

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

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

1. 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 to the bail. I further note that the Crown stated that it would not seek any revocation of bail (absent a breach of any of the conditions of bail) following the sentencing hearing and up to the imposition of the sentences.

1. The rules do allow for an appeal to be filed before a convicted person has been sentenced. But that does not mean the appeal should await sentencing. As stated by Refshauge J in Wilson v The Queen [2016] ACTCA 56, from [7]:

7.Indeed, in Nona v The Queen (No 3) [2012] ACTCA 60, I considered that, ordinarily, a stay of sentence should not be ordered merely because an appeal against conviction has been commenced.

8.That follows a line of cases commencing with R v De Marchi [1983] 1 VR 619, where the Full Court of Victoria had to consider whether to grant leave to appeal against a conviction before sentence had been passed. That was a slightly different situation from that here but the principles were appropriate.

9.The Court held at 622-4 that it was undesirable, inconvenient and wrong as a matter of policy for the application for leave to be heard before sentence had been passed.

1. Having been referred to Wilson the Crown appropriately did not press the objection to jurisdiction that had been included in its written submissions.

1. Most importantly, in De Marchi, McInerney J emphasised that an appeal against conviction, before sentencing, would only be permitted in “exceptional” circumstances.

1. The real point in this application is whether there are exceptional circumstances that would justify the granting of a stay at this stage. The applicant says there are such circumstances and they are constituted by the overwhelming strength of the appeal.

1. The applicant did not concede the necessity for there to be exceptional circumstances. Rather he referred to Samani v The Queen [2016] ACTCA 48. The applicant quoted this passage from the judgment at [17]:

As noted the requirements for a stay rely heavily on whether an appeal would be rendered nugatory if a stay is not granted.

1. In this case I think the result will be the same whether determined by the need for exceptional circumstances or the test as advocated by the applicant, as derived from Samani.

1. The notice of appeal itself has a selection of grounds stating that the verdicts were unreasonable or alternatively complaining about the absence of certain directions. It is also suggested that three of the charges should have been disposed of on a ‘no case to answer’ basis and there is a generalised complaint about the failure to give adequate reasons.

1. Notwithstanding the range of grounds, for proof of the exceptional circumstances, the applicant concentrated on four of the 838 paragraphs in the reasons for decision. These paragraphs are as follows:

Assessment of the evidence of the complainant

796. In my view, the complainant was a highly credible witness.

797.There was, in my view, nothing in the manner in which he gave evidence that cast doubt upon the general reliability of his evidence.

798.He made appropriate concessions as to the limits of his knowledge and memory. There was no tendency towards embellishment. His evidence was detailed. He was, in my view, an impressive witness. The submissions of the prosecution accord with my view of the complainant’s evidence: he was frank in his answers, his evidence had a ring of truth, and he withstood cross-examination.

799.As far as the sexual offences involving the accused are concerned, I consider the evidence of the complainant to be highly credible and reliable.

1. The applicant submitted:

With respect, the criticisms in AK apt in the present matter. Voluminous reasons which do little more than recite the evidence and arguments are not sufficient to satisfy the requirements in a judge alone trial. Nor are bland statements of law with no evidence of their application. The failure to set out the reasoning process constitutes a substantial miscarriage of justice.

1. The AK referred to in the above submission is a reference to the decision of the High Court in AK v The State of Western Australia [2008] HCA 8; 232 CLR 438. At [36], Gummow and Hayne JJ summarised the first instance decision in that matter in this way:

In his reasons for judgment, delivered ex tempore, the trial judge stated his conclusion that he "thought that the complainant was generally a thoughtful and truthful witness as to the events about which she has spoken". But apart from noticing some concessions the complainant made in cross-examination and the absence of any prompt complaint about the events the subject of the charges of indecent dealing, the trial judge did no more than state his satisfaction, beyond reasonable doubt, that each of the elements of the offences had been established. The reasoning which led to that conclusion was not stated.

1. The applicant submitted that the description of the first instance judgment in AK bore a remarkable resemblance to the passages quoted above from the decision in this matter. The applicant highlighted this passage from the judgment of Heydon J, commenting on the reasons at trial, at [85]:

The failure was almost as complete a failure as could be imagined, for apart from stating that the complainant was "generally a thoughtful and truthful witness", noting the absence of prompt complaint, recording his conclusion that the events she described took place, and recording that the appellant was responsible for them, he said nothing more about any findings of fact he relied on. 

1. It followed, submitted the applicant, that the reasons for decision in the present matter were thus so insufficient, so “complete a failure”, that the merits of the appeal were strong and, in turn, amounted to good reasons to grant a stay. The applicant put it this way, at [25] the written submissions:

Despite her Honours extensive judgement, it is respectfully submitted that it is devoid of the demonstration of reasoning and analysis required by s 68C of the Supreme Court Act 1933 (ACT). As such, there are very significant prospects of success on the appeal.

1. The Crown accepted that the “nub” of her Honour’s reasons was contained in the above four paragraphs. But the Crown said that unlike AK, where the judgement consisted entirely of the impugned reasons, the decision here was extensive, expansive and essentially a foundation to the ultimate conclusions, as brief as these were.

1. If the applicant is correct in its submissions about the defects in her Honour’s reasons then clearly it will have a strong case on appeal. However the Crown’s response is equally valid and, again if correct, will amount to a rebuttal of the appeal. I do not think I can say that this contest provides a basis on which I can say that the circumstances are exceptional or justify a stay on the test advanced by the applicant.

1. There are two other matters which I have taken into account in the exercise of my discretion. Firstly the applicant is on bail and, as noted above, the continuation of bail, absent any breaches, will not be opposed following the sentencing hearing.

1. Secondly, as observed by the Crown, there is likely to be a substantial period between the sentencing hearing and the sentencing decision. The applicant was convicted of a number of offences, each of which involved a person under the age of 16 years and two of which were sexual intercourse against a child between the age of 10 and 16 years. These are very serious offences which will no doubt call for particular consideration by her Honour.

1. The parties differed on the expectation when the appeal would be heard. It will certainly be in 2022. The applicant said the May sittings were most likely; the Crown envisaged an earlier sitting.

1. Whichever is correct, the period between final sentencing and the appeal is likely to be much shorter than the seven months suggested by the applicant. 

1. I also note, that although very rare, there will be no bar to the applicant applying for bail following the handing down of the sentences. This is akin to the course I took in the original decision in Wilson, as referred to by Refshauge J in the Court of Appeal matter. Although the bail there was between conviction and sentencing, nevertheless, it can be expected that if there are powerful subjective factors, as there appear to be here, they will be appropriately taken into account in any bail application.

1. In conclusion, I am not satisfied that there are exceptional circumstances to justify a stay or that the appeal will be rendered nugatory if a stay is not granted.

1. Accordingly, the application is dismissed.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: