Garay v The Queen (No 2)
[2022] ACTCA 16
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Garay v The Queen (No 2) |
Citation: | [2022] ACTCA 16 |
Hearing Date(s): | 30 March 2022 |
DecisionDate: | 31 March 2022 |
Reason Date: | 19 April 2022 |
Before: | McCallum CJ |
Decision: | Publication of reserved reasons for order made 31 March 2022 dismissing application for stay of criminal proceedings pending appeal |
Catchwords: | CRIMINAL LAW — APPEAL — Appeal against conviction following trial by judge alone — where appeal commenced before sentence of offender — inevitability of fulltime custodial sentence — application to stay sentence proceedings pending determination of appeal — requirement to establish exceptional case — whether proposed ground of appeal as to adequacy of trial judge’s reasons overwhelmingly strong — undesirability of fragmenting criminal proceedings |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 5405(1)(b) Criminal Procedures Act 2004 (WA), s 120(2) Supreme Court Act 1933 (ACT), s 68C(2) |
Cases Cited: | AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 Beattie v R [2020] NSWCCA 334 Wilson v The Queen [2016] ACTCA 56 |
Parties: | John Garay (Applicant) The Queen (Respondent) |
Representation: | Counsel Jones SC (Applicant) Williamson ( Respondent) |
| Solicitors Legal Aid Act (Applicant) Director of Public Prosecutions ( Respondent) | |
File Number(s): | ACTCA 43 of 2021 |
McCALLUM CJ:
John Garay was arraigned on an indictment containing 18 charges of child sexual offences alleged to have been committed against the son of a family friend. He was tried by judge alone (Loukas-Karlsson J) over several weeks in June 2021. Her Honour gave her verdicts on 31 August 2021, finding Mr Garay guilty of eight of the counts and not guilty of the remaining counts.
The offender spent 9 and ½ months in custody on remand following his arrest but had been granted bail by the time of the trial. Bail was continued pending sentence. In addition to the eight counts of which the trial judge found Mr Garay guilty, he was also to be sentenced for a charge of possession of child exploitation material to which he had pleaded guilty.
On 22 September 2021, before he had been sentenced for any of those offences, the offender commenced an appeal against his convictions at trial. On 6 October 2021, he filed an application for a stay of “the sentence to be imposed by Loukas-Karlsson J on 22 October 2021” pending the determination of the appeal. To address the incongruence of asking the Court to stay an order not yet made, the application was subsequently amended so as to seek a stay of the proceedings before Loukas-Karlsson J pending determination of the appeal.
The stay application was dismissed by Elkaim J on 20 October 2021: Garay v The Queen [2021] ACTCA 30. However, for reasons that are not apparent, the sentencing proceedings were not finalised before the end of the law term and have still not been finalised, notwithstanding an indication by the trial judge earlier this year that a sentence of fulltime imprisonment is inevitable.
On 28 March 2022, Mr Garay filed a second application for a stay. At the time the application was filed, he was due to be sentenced on the afternoon of 31 March 2022. I dismissed the application earlier that day, reserving my reasons. However, Mr Garay failed to appear for sentence and a bench warrant was issued for his arrest. He has since been arrested and has not applied for bail.
These are my reasons for dismissing the second stay application.
Power to stay proceedings pending an appeal against conviction
At the hearing of the first stay application, the Crown initially contended that the Court had no power to make the order sought but that contention was abandoned, for the reasons explained by Elkaim J at [9]-[10] of his Honour’s judgment. The application before me proceeded on the common assumption that the Court had power to grant the relief sought. Assuming that is correct, it is a power that would be exercised sparingly.
The usual course is for any appeal against conviction to abide the conclusion of the criminal proceedings in the court of trial, including the sentencing of the offender. As I will explain, the adoption of that approach is commended by both authority and practical considerations.
The law’s antagonism to the fragmentation of the criminal process is well recognised. In his decision in Nona v the Queen (No 3) [2012] ACTCA 60, Refshauge J cited Victorian authority to that effect, being the decision of the Full Court of the Victorian Supreme Court in R v De Marchi [1983] 1 VR 619. The decision in De Marchi was applied by Elkaim J (with respect, correctly) in his judgment dismissing the first stay application in these proceedings, where his Honour noted at [11] the principle emphasised by McInerney J in De Marchi that the entertainment of an appeal against conviction before sentence should be exceptional. The applicant in that case sought to argue that there was no case to answer on the offence for which he had been remanded in custody prior to sentence, or alternatively that the case should have been taken away from the jury. McInerney J noted at 622 that if the argument was sustainable:
“…it would follow that it would be unjust for the applicant to be detained in custody for the purpose of passing sentence, when his whole case was that that situation should never have arisen in that the trial should never have proceeded to the jury considering the evidence and proceeding to verdict on the evidence.”
However, his Honour added:
“Cases such as this may be regarded as being somewhat exceptional, and unless the interests of justice plainly so require, it would be, in my opinion, wrong for this Court to adopt the policy that it would in the ordinary run of cases hear applications for leave to appeal against conviction at a time when sentence had not been passed.”
Similar statements of principle have been made by the Full Court of the Federal Court and the New South Wales Court of Criminal Appeal. In Construction, Forestry, Mining and Energy Union v Employment Advocate [2001] FCA 1442, the Full Court of the Federal Court (Lee, Finn and Merkell JJ) observed at [17]:
“It is well accepted practice in the case of appeals in criminal matters that, exceptional cases apart, all considerations of convenience point to the Court entertaining an application for leave to appeal against conviction only after sentence has been passed.”
In Tonari v R [2013] NSWCCA 232, the New South Wales Court of Criminal Appeal (Johnson J, Price and Hulme JJ agreeing) noted that the Court had heard the appeal despite the fact that the appellant had not been sentenced for the offence and remarked at [5] that this “should not serve as any encouragement to adopt this procedure in other cases”. Johnson J continued:
“The ordinary and appropriate course, where s 5 [of the Criminal Appeal Act 1912 (NSW)] is relied upon, is to avoid fragmentation of the criminal trial and appellate process and for the primary court to proceed to sentence the convicted person, with any appeal against conviction, or conviction and sentence, proceeding thereafter in the usual way.”
See also Beattie v R [2020] NSWCCA 334 at [6] (Johnson J, Hulme and Wilson JJ agreeing) and Jenkins v Director of Public Prosecutions [2013] NSWCA 406 at [85] (Gleeson JA, Hoeben JA agreeing, Simpson J not deciding).
There are good reasons for that approach which include but are not confined to practical considerations. The fragmentation of the criminal proceedings is apt to cause delay, duplication of hearing time (if appeals against conviction and sentence are heard separately) and the risk of inconsistent reasoning (if separate appeals are heard by benches differently composed). It is also apt to undermine the integrity of verdicts, whether given by juries or judges sitting alone, and potentially to cause unnecessary angst for victims and false hope for offenders. The preferable course is to permit the proceedings at first instance to run their course. The interests of wrongly convicted accused persons are not compromised by that approach, as it is accepted that the Court of Appeal has power in an exceptional case to grant bail and a stay of sentence pending appeal: Sherd v The Queen [2011] ACTCA 17; (2011) 5 ACTLR 290 at [43] (Refshauge J); and see Quzag v The Queen (No 3) [2015] ACTCA 37.
In reaching these conclusions, I have not overlooked the fact that the Court Procedures Rules 2006 (ACT) permit and, in a sense, require offenders to commence any appeal against conviction before being sentenced, as observed in Nona v R (No 3) at [6]. That is a result of the fact that, under r 5405(1)(b), the time for commencing an appeal to the Court of Appeal against conviction in the Supreme Court is limited to 28 days after the order appealed from was made. The rule confers an unconstrained discretion to allow further time, but only on application filed within the 28-day period. In many cases, it is necessary for offenders to obtain reports for sentence, which frequently take six to eight weeks to be prepared. As a result, many offenders convicted in the Supreme Court are not sentenced within 28 days of conviction, as desirable as that may be.
It has nonetheless been accepted that, notwithstanding those provisions of the Court Procedures Rules, a stay should not ordinarily be ordered “merely because an appeal against conviction has been commenced”: Wilson v The Queen [2016] ACTCA 56 at [6] (Refshauge J). On the present application at least (and perhaps contrary to the position adopted in the first application), the applicant accepts that it is necessary to establish special or exceptional circumstances in order to obtain a stay and continuation of bail pending appeal.
That is plainly the correct approach. The rules should not be understood to encourage the fragmentation of the proceedings in the court of trial or otherwise to derogate from the principles discussed above.
Consideration of the substantive application
The Crown submitted that, being a second application for a stay brought on substantially the same grounds, the application should not be entertained and should be dismissed peremptorily. There is much force in that submission. For the reasons already explained, it should be exceptional for the Court of Appeal to stay the criminal proceedings in the court of trial pending appeal. That is all the more so in the case of a second application.
The duplication between the two applications in the present case is readily apparent. In each case, the principal basis for the application was the alleged overwhelming strength of the appeal. In each case, the submissions placed particular emphasis on the fifth ground of appeal, which contends that the trial judge failed to provide adequate reasons for her decision as required by s 68C(2) of the Supreme Court Act 1933 (ACT), resulting in a miscarriage of justice. It was not suggested that there has been any change of circumstance since the determination of the first stay application, nor was any new point sought to be raised. The only change of circumstance is that the anticipated delay between the passing of sentence and the hearing of the appeal is now likely to be less than was anticipated at the time the first application.
Additional written submissions were provided in support of the second application but those submissions largely rehearsed the submissions provided at the first application and indeed expressly relied on those earlier submissions.
The only reason put forward for bringing a second application was the contention that, having (so it was submitted) noted that there was “merit to both parties’ submissions”, Elkaim J “might have given more detailed consideration of the judgment in light of the authorities”. The complaint is unfounded. The submission rested on the following passage at [22] of his Honour’s judgment:
“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.”
The reference to “the test advanced by the applicant” was a reference to the fact that the applicant did not then accept any requirement to establish exceptional circumstances in order to obtain a stay. The submission appears to have been that, on the authority of the decision of Refshauge J in Samani v The Queen [2016] ACTCA 48 at [17], the determination of the application should “rest heavily on whether an appeal would be rendered nugatory if a stay is not granted”. On a fair reading of the decision in Samani as a whole, I am not persuaded that his Honour intended to posit a test in those terms. In any event, it is clearly not the test. It is well established that the grant of a stay of sentence pending appeal should be exceptional.
With respect, it is clear from Elkaim J’s judgment that his Honour did consider the reasons for conviction given by Loukas-Karlsson J and that his Honour was not persuaded that the prospects of success on the appeal were so strong as to satisfy the test for obtaining a stay pending an appeal against conviction prior to sentence. Having reached that conclusion, Elkaim J was not required to expose his reasons in any great detail. A stay application is not a rehearsal for the substantive appeal.
The reasons given by Elkaim J for refusing the first application were, with respect, cogent and appropriate to the occasion. No new point having been raised in the present application, it would have been well open to the Court to refuse the application without further consideration, as contended by the Crown.
For abundance of caution, however, I have independently given careful consideration to the judgment of Loukas-Karlsson J. I respectfully share the view reached by Elkaim J that an exceptional case has not been established on the face of those reasons alone.
As already noted, the focus of the second stay application was the fifth ground in the notice of appeal which raises the alleged failure to provide adequate reasons such as to result in a miscarriage of justice. The obligation of a judge giving a verdict in criminal proceedings after a trial without a jury is specified in s 68C(2) of the Supreme Court Act as follows:
“The judgment in criminal proceedings tried by a judge alone must include the principles of law applied by the judge and the findings of fact on which the judge relied.”
It is established that, in order to comply with that requirement, it is not enough merely to list the principles of law and the findings of fact; the content of the obligation is to expose the reasoning process linking the principles of law and the findings of fact made: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68.
The applicant submitted that the failure to provide adequate reasons in accordance with the requirement of s 68C(2) as understood in the authorities is apparent on the face of her Honour’s judgment and that the prospects of success of the appeal are so high as to amount to exceptional circumstances.
The applicant placed considerable reliance in that context on the decision of the High Court in AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8. The Court's decision in that case was concerned with s 120(2) of the Criminal Procedures Act 2004 (WA), which is not relevantly different from the requirement of s 68C(2) set out above.
In AK, however, it was common ground that the primary judge had erred in law by failing to give adequate reasons for his decision to convict the appellant. The appellant was convicted of sexual offences alleged to have been committed at a time when there were two females and two males sleeping in the same bed. Identification was in issue. The trial judge did not state his reasons for rejecting the appellant’s case on that issue. In the judgment of Gleeson CJ and Kiefel J, it was noted that consideration of that issue had been raised in the trial judge’s exchanges with counsel during the course of addresses. However, the matters raised in those exchanges were not included in the reasons for decision, which were very short and which gave no explanation of the path of reasoning by which the judge had reached the conclusion beyond reasonable doubt that the person who sexually assaulted the complainant was the appellant.
It is trite that the adequacy of a judge’s reasons must be assessed according to the issues raised in the individual case. Importantly, unlike the position in AK, the trial judge in the present case set out the evidence in support of each count at great length, noting concessions, inconsistencies and conflicts in careful detail. Her Honour also set out the parties’ submissions, chapter and verse. The applicant contends that indeed is the vice of the judgment; that the evidence and submissions are set out at great length but with no analysis, reasoning or findings of fact. No doubt that submission will be developed at the hearing of the appeal. For present purposes, it is enough to confine myself to the observation that, unlike the position in AK (where identification was in issue), the present case was one of word against word and accordingly a different kind of analysis was required. The decision in AK is accordingly of limited assistance.
Further, the applicant's submissions tended to assume, without analysis, that the requirement to give reasons requires the judge to articulate which parts of the evidence are accepted and which are rejected. It was submitted in that context that, whereas the applicant had given evidence in relation to a lengthy period of time and where there were aspects of his evidence that were not in dispute or not challenged in cross examination, the trial judge failed in those circumstances to indicate which parts of the applicant’s evidence her Honour rejected and the reasons for rejection of that evidence. Whether or not that overstates the content of the obligation to give reasons will be a matter for submission at the appeal. My point is that, without analysis of that issue, I do not think it can be concluded that the ground alleging a failure to give adequate reasons is of overwhelming strength such as to amount to exceptional circumstances for the purpose of a stay application.
The prosecutor at trial made detailed submissions as to why the complainant’s evidence should be accepted. The trial judge set those submissions out in the judgment and said that they accorded with her own view of the complainant. Whether that was enough to satisfy the statutory obligation to give reasons will be a matter for the appeal but this is not a case in which it can be said that the stringent test for obtaining a stay has been satisfied.
The applicant also relied on the second and third grounds of appeal which complain of failure to apply the Liberato and Markuleski directions which it was submitted could also be dealt with “succinctly on the basis of the judgment”. This is not a case in which the judge omitted to give herself the required directions. The contention is that, having done so, it can be seen from the reasons that her Honour failed to apply those directions.
It is neither necessary nor appropriate for present purposes to discuss that issue at any length. It is enough to say that, the trial judge having given herself appropriate directions (it is not suggested otherwise), the applicant’s complaint that her Honour did not apply those directions is contestable. An exceptional case has not been established on those grounds.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 19 April 2022 |
1
10
0