GW v The Queen
[2014] ACTCA 54
•23 July 2014
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 That the name of the appellant not be published outside the Court and that the name of the appellant in the proceedings be amended by substituting "GW" for [redacted]. 2.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 |
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 2014. The balance of the term of imprisonment after the period of periodic detention had been served was to be suspended.
GW has now made application for a stay of the orders pending the determination of the appeal against conviction. The appeal will not be able to be heard prior to 13 October 2014, when the period of detention will have expired. It has, in fact, been listed for hearing on 5 November 2014. GW has proceeded with his appeal with appropriate expedition, the full appeal book having been filed on 18 July 2014.
The Supreme Court Act 1933 (ACT) does not give an express power to this Court to stay execution of an order made in a court from which an appeal has been taken. There is, however, authority that the court does possess such a power. I have set out in Sherd v The Queen (2011) 5 ACTLR 290 at 297; [33] a passage from the High Court's decision in United Mexican States v Cabal (2001) 209 CLR 165 at 180-1 which identifies the source of the power of the court to stay proceedings. The Court there said:
The grant of judicial power [to hear appeals from orders of certain courts] carries with it authority to do all that is necessary to effectuate its main purpose. Because that is so, the Court has authority to do all that is necessary to effectuate the grant of appellate jurisdiction … It therefore has power to stay orders that are or may become the subject of its appellate jurisdiction. If the Court did not have power to stay an order the subject of an appeal, it might fail to do full justice to the appellant or potential appellant.
Thus, the power of the Court of Appeal, under s 37E of the Supreme Court Act, granting this Court appellate jurisdiction from orders of the Supreme Court, including those entering convictions, carries with it the jurisdiction to order a stay. That is clear also from an implication which can be taken from s 37J(1)(d) of the Supreme Court Act which permits a single judge of the Court to decide whether to stay an order of the court from which the appeal is brought. That recognises, in terms, the incidental power of the Court to order a stay.
A grant of a stay of execution of a judgment is a discretionary decision, and the onus of persuading a court to grant the stay is on the party seeking the stay of execution. See Alexander v Cambridge Credit Corporation Limited(1987) 9 NSWLR 310.
Where an appellant is in custody, a stay will not be effective unless bail is granted. As I have pointed out in Sherd v The Queen at 299; [46], special or exceptional circumstances are required to justify the grant of bail pending an appeal. In this case, however, no bail is required. The stay of execution of the sentence will mean that GW will not have to attend to serve the term of imprisonment by periodic detention until the hearing and determination of the appeal.
In the absence of any statutory obligation, it would appear that special or exceptional circumstances are not required for a stay where a proper basis has been made out for it. See Alexander v Cambridge Credit Corporation.
In criminal matters, Barry J, with whom Monaghan J agreed, said, in Ryan v The Attorney-General of Victoria [1967] VR 514 at 515
... it is the duty of a superior court of general jurisdiction to preserve in existence the subject matter of legal proceeding properly instituted in the Court, whether the subject matter be a human being or any other object of legal significance until the proceedings, including those of an appellate nature, have been completed and that it necessarily follows from the obligation that the court has an inherent power to make whatever orders required to restrain the destruction of the subject matter of the proceedings.
It has often been said since then that, where an appeal will be rendered nugatory unless a stay is granted, the court will normally exercise its discretion in favour of the applicant. See Wilson v Church (No 2) (1979) 12 Ch D 454. This would justify the grant of the orders sought where the period of periodic detention will expire before the appeal can be heard. The whole sentence will not have expired and that some part will be served cannot, of itself, justify a stay.
That the balance of the term of imprisonment was suspended, however, does mean that the most severe portion of the sentence, and the only portion which will directly affect GW’s liberty, will have been served. This puts it in a similar position to that where the whole of the term of imprisonment would have been served prior to the hearing of an appeal.
While courts will not normally speculate about an appellant’s prospects of success, it is important that, in criminal cases especially, there is some clear indication that the appeal is at least arguable and that it is not frivolous or unlikely to succeed. This is, of course, not the position with bail, where different provisions apply as I outlined in Sherd v The Queen at 297; [30], and where special or exceptional circumstances may be required before bail can be granted.
I have been taken in some detail by Mr M Kukulies-Smith, who appeared for GW, to the grounds of appeal and the basis for them. At least two grounds rely on leave to be granted because objection was not taken to what are said to be errors in the direction of the trial judge, but which were not raised at the time the directions were given to the jury. Nevertheless, there are a number of other grounds to which that problem does not apply.
I have considered the careful and detailed explanation that Mr Kukulies-Smith helpfully gave me. It does seem to me that the other grounds are at least arguable and the Crown, ably represented by Mr M Thomas, did not contend otherwise, although he carefully and wisely noted that the appeal itself was opposed and that matters other than those mentioned by Mr Kukulies-Smith would be drawn to the attention of the appellate Court in due course, and it would be urged on the appellate Court that the appeal should be dismissed.
Having carefully considered the matter, I consider that the court should exercise its discretion in favour of the applicant for the stay, and I will make appropriate orders.
I will order:
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.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 2 February 2015 |
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