Garay v The Queen (No 2)

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.