Garay v The Queen

This matter concerned an application by John Paul Garay (the applicant) for a stay of proceedings before the Supreme Court of the Australian Capital Territory, pending the decision of the ACT Court of Appeal in a related matter. The application was opposed by the Crown. The applicant had previously been tried by Loukas-Karlsson J, who acquitted him on 10 counts but found him guilty on 8 counts. A notice of appeal against these convictions was subsequently filed. The application before the court also sought bail, though the applicant was already on bail.

The primary legal issue before the court was whether exceptional circumstances existed to justify granting a stay of proceedings before sentencing, or alternatively, whether the appeal would be rendered nugatory if a stay were not granted. The applicant argued that the strength of his appeal, particularly concerning the alleged insufficiency of the trial judge's reasons for conviction, constituted exceptional circumstances. The Crown maintained its opposition, contending that the reasons provided by the trial judge, while brief in parts, were not so deficient as to warrant a stay.

The court considered the principles established in cases such as *R v De Marchi* and *Wilson v The Queen*, which generally hold that a stay of sentence should not be ordered merely because an appeal against conviction has been commenced, unless exceptional circumstances are present. The applicant sought to draw parallels between the trial judge's reasons in this case and those criticised in *AK v The State of Western Australia*, arguing that the reasons were insufficient and amounted to a substantial miscarriage of justice. However, the court found that while the applicant's submissions regarding the defects in the reasons for decision, if correct, would present a strong case on appeal, the Crown's counterarguments were also valid. The court concluded that this contest did not provide a sufficient basis to deem the circumstances exceptional or to justify a stay.

In exercising its discretion, the court also took into account that the applicant was on bail and that the Crown would not oppose the continuation of bail following the sentencing hearing. Furthermore, the court noted the likely substantial period between the sentencing hearing and the final sentencing decision, and that there would be no bar to the applicant applying for bail following the imposition of sentences. Ultimately, the court was not satisfied that exceptional circumstances existed to justify a stay or that the appeal would be rendered nugatory. Accordingly, the application was dismissed.