Garay v The Queen (No 4)

[2023] ACTCA 3

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title: 

Garay v The Queen (No 4)

Citation: 

[2023] ACTCA 3

Hearing Date: 

18 August 2022

Decision Date: 

27 January 2023

Before: 

McCallum CJ

Decision: 

Bail refused.

Catchwords: 

CRIMINAL LAW – BAIL – Bail refused – Whether special or exceptional circumstances exist favouring the grant of bail –

where special or exceptional circumstances relied on are directly

related to the appeal and its outcome – whether prospects of

success in the appeal were overwhelmingly strong

Legislation Cited: 

Bail Act 1992 (ACT) s 9E

Cases Cited: 

Garay vThe Queen (No 3) [2023] ACTCA 2

Parties: 

John Paul Garay (Appellant)
The Queen (Respondent)

Representation: 

Counsel

J White SC (Appellant)
S Jerome (Respondent)

Solicitors

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number: 

ACTCA 43 of 2021

Decision under appeal: 

Court/Tribunal:	Supreme Court
Before:	Loukas-Karlsson J
Date of Decision:	31 August 2022
Case Title:	R v Garay
Citation:	[2021] ACTSC 215

Court File Numbers: SCC 117 of 2020; SCC 118 of 2020

McCallum CJ: 

1.       The appellant, John Garay, was tried by judge alone on an indictment containing 18

counts of historic sexual offences contrary to s 92E(2) and s 92K(2) of the Crimes Act

1900 (ACT). The trial judge (Loukas-Karlsson J) returned verdicts of guilty for eight of

those counts. On 10 June 2022, he was sentenced to a term of imprisonment for five

years with a non-parole period of three years.

2. Mr Garay appealed against his conviction and applied for bail pursuant to s 9E of the

Bail Act 1992 (ACT). I heard that application on 18 August 2022, following the hearing

of the substantive appeal. The following day, I refused bail, reserving my reasons and

indicating that they would be published at the same time as the substantive judgment

in the appeal. That judgment has been published today. By majority, the Court

dismissed the appeal. These are my reasons for refusing the bail application.

3. Section 9E of the Bail Act applies where a person has been convicted of an offence,

subsequently sentenced to a term of imprisonment, and has an appeal pending against

conviction or sentence. The section provides that the Court must not grant bail unless

satisfied that special or exceptional circumstances exist favouring the grant of bail:

s 9E(2).

4.       At the hearing of the bail application, the appellant indicated that the special or

exceptional circumstances relied on are directly related to the appeal and its outcome.

The central argument in support of the grant of bail was that the prospects on appeal,

and of obtaining a retrial, were overwhelmingly strong.

5.       There were three grounds of appeal. A ground that the verdicts were unreasonable,

and could not be supported having regard to the evidence, was put forward in the

written submissions as the central ground. That ground, if successful, would have

resulted in the applicant’s being acquitted. The principal alternative ground was that

the trial judge had failed to comply with the statutory requirement to give reasons. That

ground, if successful, would have resulted in the Court’s ordering a new trial subject to

the discretion of the Director of Public Prosecutions not to proceed to trial for a second

time. The appellant’s principal submission in support of a grant of bail was that the

allegation of failure to provide reasons was so strong that the Court should grant bail

pending the production of the judgment. The applicant was on bail until he was

sentenced and has personal reasons for seeking to be at liberty, foremost among which

was the need to care for his elderly mother and his brother. He submitted that, if (as

he contended was highly likely) he was successful in obtaining a retrial, it would be inappropriate to remand him in custody because of the possibility of the prosecution

deciding to not put him to trial a second time.

6.       At the time he was committed for trial for the historic sexual offences, the applicant

pleaded guilty to a charge of possessing child exploitation material. For that offence,

he was sentenced to three months imprisonment, commencing on 13 December 2026

and expiring on 12 March 2027. The appellant submitted that the sentence of

imprisonment imposed for that offence had effectively been fully served by the date of

the hearing of the appeal.

7.       For the reasons set out in detail in my judgment in the appeal, Garay v the Queen (No

3) [2023] ACTCA 2, I was not persuaded that the prospects of success in the appeal

were overwhelmingly strong. That being the basis on which the applicant sought to

overcome the hurdle imposed by s 9E, I refused the application.

I certify that the preceding seven [7] numbered paragraphs are a true copy of the Reasons for Judgment of the Chief Justice McCallum.

Associate:

Date: 27 January 2023