GW v The Queen

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The Court ordered that the appellant's name not be published, granted leave to amend the Notice of Appeal, and stayed the execution of the sentence imposed on the appellant pending the hearing and determination of the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