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Garay v The Queen (No 2)

Garay v The Queen (No 2)

Case [2022] ACTCA 16 31 March 2022

Statutory Construction

Criminal Law

Evidence

Statutory Interpretation

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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 Construction, Forestry, Mining and Energy Union v Employment Advocate [2001] FCA 1442 Fleming v R (1998) 197 CLR 250; [1998] HCA 68 Garay v The Queen [2021] ACTCA 30 Jenkins v Director of Public Prosecutions [2013] NSWCA 406 Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66 R v Markuleski (2001) 52 NSWLR 82; [2001] NSWCCA 290 Nona v the Queen (No 3) [2012] ACTCA 60 Quzag v The Queen (No 3) [2015] ACTCA 37 R v De Marchi [1983] 1 VR 619 Samani v The Queen [2016] ACTCA 48 Sherd v The Queen [2011] ACTCA 17; (2011) 5 ACTLR 290 Tonari v R [2013] NSWCCA 232 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…

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 (No 2)

Details

AGLC: Garay v The Queen (No 2) [2022] ACTCA 16
Case: [2022] ACTCA 16
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory considered an application by John Garay for a stay of criminal proceedings pending his appeal against conviction. Mr Garay had been found guilty of eight counts of child sexual offences following a judge-alone trial, and also pleaded guilty to possession of child exploitation material. He sought to stay the sentencing proceedings before the trial judge, arguing that his appeal against conviction had strong prospects of success.

The primary legal issue before the Court was whether it possessed the power to grant a stay of sentencing proceedings pending an appeal against conviction, and if so, under what circumstances such a power should be exercised. The Court was required to determine whether the applicant had established exceptional circumstances justifying a departure from the usual course of allowing criminal proceedings, including sentencing, to conclude at first instance before an appeal is heard. This involved assessing the strength of the proposed grounds of appeal, particularly the contention that the trial judge failed to provide adequate reasons for her decision.

The Court affirmed the well-established principle that criminal proceedings should not ordinarily be fragmented, and that appeals against conviction should typically follow sentencing. This approach is favoured to avoid delay, duplication of effort, and the risk of inconsistent reasoning. While acknowledging the Court Procedures Rules require appeals against conviction to be commenced within 28 days of the order, which can precede sentencing, the Court emphasised that this does not necessitate granting a stay. The applicant must demonstrate special or exceptional circumstances, and the Court found that the grounds of appeal, particularly concerning the adequacy of the trial judge's reasons, did not meet this stringent threshold. The Court noted that the applicant's argument regarding the trial judge's reasons was not demonstrably of overwhelming strength, distinguishing the present case from authorities where stays were granted.

The second application for a stay was dismissed. The Court found that no new circumstances or arguments had been presented since the first application was refused, and that the grounds relied upon did not establish an exceptional case. Consequently, the Court concluded that the interests of justice did not require a stay of the sentencing proceedings.

Orders