GW v The Queen - [2014] ACTCA 54

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	GW v The Queen
Citation:	[2014] ACTCA 54
Hearing Date(s):	23 July 2014
DecisionDate:	23 July 2014
Before:	Refshauge J
Decision:	1. That the name of the appellant not be published outside the Court and that the name of the appellant in the proceedings be amended by substituting "GW" for [redacted]. 2. That the appellant have leave to amend the amended Notice of Appeal to substitute “8 April 2014” for “8 March 2014” as the date on which the jury returned its verdict. 3. The execution of the sentence imposed on the appellant on 14 July 2014 be stayed pending the hearing and the determination of the appeal.
Category:	Principal Judgment
Catchwords:	APPEAL – In General and Right of Appeal – Application for stay of execution – Court does not have express power to order stay of execution – Power of Court to order stay of execution incidental – Some clear indication of an appeal being arguable required
Legislation Cited:	Supreme Court Act 1933 (ACT), s 37
Cases Cited:	Alexander v Cambridge Credit Corporation Limited(1987) 9 NSWLR 310 Ryan v The Attorney-General of Victoria [1967] VR 514 Sherd v The Queen (2011) 5 ACTLR 290 United Mexican States v Cabal (2001) 209 CLR 165 Wilson v Church (No 2) (1979) 12 Ch D 454
Parties:	GW (Applicant) The Queen (Respondent)
Representation:	Counsel Mr M Kukulies-Smith (Applicant) Mr M Thomas (Respondent)
Solicitors Kamy Saeedi Lawyers (Applicant) ACT Director of Public Prosecutions (Respondent)
File Number(s):	ACTCA 17 of 2014
Decision under appeal:	Court/Tribunal: Supreme Court Before: Penfold J Date of Decision: 8 April 2014 Case Title: R v GW Court File Number(s): SCC 55 of 2013

Refshauge J:

After a trial, GW, the appellant and applicant, was convicted, on 8 April 2014, of committing an act of indecency in the presence of a young person under the age of ten years.

On 5 May 2014, he filed a Notice of Appeal against the conviction on the ground that the finding of guilt was unsafe and unsatisfactory. An amended Notice of Appeal filed on 12 June 2014 expanded the grounds of the appeal, including the ground that the verdict of the jury was said to be inconsistent with the verdicts on other counts.

The indictment in the proceedings had contained six counts. As well as the finding of guilt on count three, the jury were unable to come to an agreement on counts one, two and four and acquitted GW on counts five and six. The amended Notice of Appeal further challenged the admission of certain unsworn evidence and asserted errors in the directions given by the trial judge.

On 14 July 2014, GW was sentenced by the trial judge to two years’ imprisonment for the offence of which he had been found guilty. Her Honour directed that the first three months of the sentence of imprisonment be served by way of periodic detention, the first weekend to commence on 18 July…

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 GW v The Queen

Details

AGLC: GW v The Queen [2014] ACTCA 54
Case: [2014] ACTCA 54
Decision Date: 23 July 2014

CaseChat Overview and Summary

GW appealed against a sentence imposed by the Supreme Court of the Australian Capital Territory. The appeal concerned an application for a stay of execution of that sentence.

The primary legal issue before the Court was whether it possessed the power to order a stay of execution of a sentence pending the determination of an appeal, in circumstances where no express statutory power was identified.

Refshauge J held that while the Court did not have an express statutory power to grant a stay of execution, such a power was incidental to its appellate jurisdiction. The Court reasoned that the power to stay execution was necessary to preserve the subject matter of the appeal and to ensure the effective exercise of the appellate jurisdiction. However, the Court also indicated that leave to appeal or a clear indication that the appeal was arguable would be required before a stay would be granted.

The Court ordered that the appellant's name not be published, granted leave to amend the Notice of Appeal, and stayed the execution of the sentence imposed on the appellant pending the hearing and determination of the appeal.

Orders

Orders of the court

1. That the name of the appellant not be published outside the Court and that the name of the appellant in the proceedings be amended by substituting "GW" for [redacted].

2. That the appellant have leave to amend the amended Notice of Appeal to substitute “8 April 2014” for “8 March 2014” as the date on which the jury returned its verdict.

3. The execution of the sentence imposed on the appellant on 14 July 2014 be stayed pending the hearing and the determination of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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