Legal Research
Cases
Quzag v The Queen (No 2)

Quzag v The Queen (No 2)

Case [2015] ACTCA 10 14 April 2015

Type to search within this case.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Quzag v The Queen (No 2)
Citation:	[2015] ACTCA 10
Hearing Date(s):	18 March 2015
DecisionDate:	14 April 2015
Before:	Refshauge J
Decision:	The Court declines to stay the sentence imposed on 12 February 2015.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – JURSIDICTION, PRACTICE AND PROCEDURE – Application for bail – Appeal pending – Whether stay necessary – Whether sentence will have been served while on bail
Legislation Cited:	Bail Act 1992 (ACT), s 9E Crimes (Sentence Administration) Act 2005 (ACT), ss 55, 58 Crimes (Sentencing) Act 2005 (ACT), ss 11, 12, 62, 63 Criminal Appeal Act 1912 (NSW), s 18(3) Federal Court of Australia Act 1976 (Cth), ss 29A, 37R Periodic Detention Act 1995 (ACT), s 4 Periodic Detention of Prisoners Act 1981 (NSW), ss 5, 8 Supreme Court Act 1933 (ACT), s 37Q, Pt 2A Supreme Court Amendment Act 2001 (No 2) (ACT) Explanatory Memorandum for the Law and Justice Legislation Amendment Bill 1990 (Cth) Explanatory Statement for the Supreme Court Amendment Bill 2001 P Nygh and P Butt (eds) Butterworth’s Australian Legal Dictionary (Sydney: Butterworths, 1977)
Cases Cited:	Grey-Pagdin v Duthie (1987) 47 SASR 493 Hadba v The Queen (2004) 146 A Crim R 291 Lewis v Chief Executive of the Department of Justice and Community Safety of the ACT (2013) 280 FLR 118 Petreski v Cargill (1987) 18 FCR 68 Quzag v The Queen [2015] ACTCA 9 R v Brooke (1788) 2 TR 190 R v Collins (2002) 127 A Crim R 95 R v Hall [2004] NSWCCA 127 R v Malvaso (No 2) (1989) 50 SASR 541 Sherd v The Queen (2011) 5 ACTLR 290 Snaidero v Crampton and O’Sullivan (No 2) [2014] ACTSC 367 Whan v McConaghy (1984) 153 CLR 631
Parties:	Mohanad Quzag (Appellant) The Queen (Respondent)
Representation:	Counsel Mr Kukulies-Smith (Appellant) Ms E Beljic (Respondent)
Solicitors Kamy Saeedi Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number(s):	ACTCA 12 of 2015
Decision under appeal:	Court/Tribunal: ACT Supreme Court Before: Murrell CJ Date of Decision: 12 February 2015 Case Title: R v Mohanad Quzag Citation: [2015] ACTSC 52

Refshauge J:

On 18 March 2015, I granted the Appellant, Mohanad Quzag, bail, pending the hearing of his appeal against the sentence imposed by the Supreme Court: Quzag v The Queen [2015] ACTCA 9.

Despite an application claiming a stay of the proceedings, I did not grant a stay. It is not necessary to do so before bail is granted in these circumstances: Sherd v The Queen (2011) 5 ACTLR 290 at 299; [44].

A question has arisen, however, as to whether granting bail was appropriate and effective to deal with all the custodial portions of the sentence, in particular, the period of imprisonment to be served by periodic detention.

The reason that I held in Sherd v The Queen that a stay is not necessary before granting bail, pending appeal, to a person serving a sentence of imprisonment, was…

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 Quzag v The Queen (No 2)

Details

AGLC: Quzag v The Queen (No 2) [2015] ACTCA 10
Case: [2015] ACTCA 10
Decision Date: 14 April 2015

CaseChat Overview and Summary

In *Quzag v The Queen (No 2)*, the applicant, Quzag, sought a stay of a sentence imposed by the Supreme Court of the Australian Capital Territory on 12 February 2015, pending the determination of an appeal against that sentence. The application was heard by Refshauge J of the Supreme Court of the Australian Capital Territory.

The central legal issue before the Court was whether a stay of the sentence was necessary, specifically considering whether the applicant would have served the entirety of his sentence while on bail. This required the Court to assess the likelihood of the appeal succeeding and the practical implications of granting or refusing bail in light of the sentence length and the anticipated duration of the appeal process.

Refshauge J reasoned that a stay of a sentence pending appeal is an exceptional remedy. The Court considered the length of the sentence and the likely time it would take for the appeal to be heard. His Honour concluded that, given the circumstances, the applicant would likely have served the sentence before the appeal could be determined, rendering a stay unnecessary and the appeal potentially academic in that regard.

Accordingly, the Court declined to grant the stay of the sentence imposed on 12 February 2015.

Orders

Orders of the court

The Court declines to stay the sentence imposed on 12 February 2015.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Quzag v The Queen (No 2) [2015] ACTCA 10

Most Recent Citation

Lewis v Australian Capital Territory (No 2) [2015] ACTSC 343

Cases citing this decision · 5 of 5 shown

Lewis v Australian Capital Territory
[2018] ACTSC 19 Para 1

…a stay of his sentence when he was granted bail, perhaps explicable because of what was then believed to have been the law ( Quzag v The Queen (No 2) [2015] ACTCA 10), he escaped altogether the statutory consequences of his undoubted breach of the periodic detention order.…
Australian Capital Territory v Lewis
[2016] ACTCA 34 Para 1

…al under s 55 not to perform the periodic detention for a period. This, submitted the appellant, is consistent with the decisions in Quzag v R (No 2) [2015] ACTCA 10 ( Quzag [2015] ACTCA 10 ) and R v Carrion [2002] NSWCCA 21; (2002) 128 A Crim R 29 ( Carrion ). Further, the primary judge’s reliance on Whan v McCon…
Lewis v Australian Capital Territory (No 2)
[2015] ACTSC 343 Para 1

…the relevant ACT legislation was directly inconsistent with a decision of Refshauge J delivered after Lewis No 1 was heard ( Quzag v The Queen (No 2) [2015] ACTCA 10 ( Quzag )). ACT submitted that, in Quzag , Refshauge J held that s 58 of the Administration Act had the effect that the sentence was not served and w…
The Queen v Quzag
[2015] ACTCA 36 Para 1

…On 14 April 2015, Refshauge J published a judgment in which he confirmed that he did not grant a stay ( Quzag v The Queen (No 2) [2015] ACTCA 10). His Honour said, in the judgment, that it was not necessary to grant a stay before bail is granted by the Court. His Honour cited, as authority for that proposition, hi…
The Queen v Thompson
[2015] ACTCA 19 Para 1

…erd v the Queen at 299; [44] that a stay does not have to be ordered before bail can be granted, though, as I pointed out in Quzag v the Queen (No 2) [2015] ACTCA 10, it may be necessary, in certain circumstances, to make a stay order to preserve the integrity of the sentence imposed. I am told that the decision i…

View all 5 citing cases →

Cases cited in this decision · 11 of 11 shown

R v Collins
[2018] SASCFC 97 Para 1

…In R v Collins (2002) 127 A Crim R 95 at 99; [10], Gray J accepted the definition of bail in P Nygh and P Butt (eds) Butterworth’s Australian Legal Dictionary (Sydney: Butterworths, 1977) as follows:…
Quzag v The Queen
[2015] ACTCA 9 Para 1

…I granted the Appellant, Mohanad Quzag, bail, pending the hearing of his appeal against the sentence imposed by the Supreme Court: Quzag v The Queen [2015] ACTCA 9.…
R v Mohanad Quzag
[2015] ACTSC 52

…Court/Tribunal: ACT Supreme Court Before: Murrell CJ Date of Decision: 12 February 2015 Case Title: R v Mohanad Quzag Citation: [2015] ACTSC 52…
Stephanie Snaidero v Brooke Amy Crampton and Bridget O'Sullivan (No 2)
[2014] ACTSC 367 Para 1

…In Snaidero v Crampton and O’Sullivan (No 2) [2014] ACTSC 367, I considered that, even on dismissal of an appeal, the alteration of the express terms of a sentence was possible in this jurisdiction because of the width of power of the court on such dismissal, explained in Hadba v The Queen (2004) 146 A Crim R 291.…
Lewis v Chief Executive Department of Justice and Community Safety (No 2)
[2014] ACTSC 196 Para 1

…I set out the history of the legislation and its structure in Lewis v Chief Executive of the Department of Justice and Community Safety of the ACT (2013) 280 FLR 118 at 124-30; [14]-[47] and, after satisfying myself (at 126; [28]) that a sentence of imprisonment, including a direction that the imprisonment be served…
Sherd v The Queen
[2011] ACTCA 17 Para 1

…n application claiming a stay of the proceedings, I did not grant a stay. It is not necessary to do so before bail is granted in these circumstances: Sherd v The Queen (2011) 5 ACTLR 290 at 299; [44].…
Hadba v The Queen
[2004] ACTSC 62 Para 1

…ion of the express terms of a sentence was possible in this jurisdiction because of the width of power of the court on such dismissal, explained in Hadba v The Queen (2004) 146 A Crim R 291.…
R v Hall
[2004] NSWCCA 127 Para 1

…In R v Hall [2004] NSWCCA 127, Handley JA, with whom Dowd and Greg James JJ agreed, held that where a sentence order specifies expressly the start date of a sentence, a general provision (there s 18(3) of the Criminal Appeal Act 1912 (NSW) in similar terms to s 37Q of the Supreme Court Act ) was not sufficient to pe…
Malvaso v the Queen
[1989] HCA 58 Para 1

…t of judgment or conviction the sentence continued to run even though the Appellant had been granted bail. As White J described in R v Malvaso (No 2) (1989) 50 SASR 541 at 543-4:…
Whan v McConaghy
[1984] HCA 22

…itutes, W Blackstone’s Commentaries and Stephen’s New Commentaries and the confirmation of the common law position by the High Court in Whan v McConaghy ... See also Grey-Pagdin v Duthie (1987) 47 SASR 493 at 497. Prior to the establishment of the Court of Appeal by the insertion of Pt 2A in the Supreme Court Act from 14 October 2002, the Federal Court of…
100 ER 103
100 ER 103 Para 1

…t of bail “does not of itself interfere with the operation of the order” imposing the sentence and referred to R v Brooke (1788) 2 TR 190 at 196; 100 ER 103 at 106.…

Legislation cited in this decision · 9

Crimes (Sentencing) Act 2005 (ACT)
11, 12, 62, 63 5 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
55, 58 3 mentions (from Para 1)
Federal Court of Australia Act 1976 (Cth)
29A, 37R 3 mentions (from Para 1)
Periodic Detention of Prisoners Act 1981 (NSW)
5, 8 3 mentions (from Para 1)
Bail Act 1992 (ACT)
9E 2 mentions (from Para 1)
Criminal Appeal Act 1912 (NSW)
18(3) 2 mentions (from Para 1)
Periodic Detention Act 1995 (ACT)
4 2 mentions (from Para 1)
Supreme Court Act 1933 (ACT)
37Q 2 mentions (from Para 1)
Supreme Court Amendment Act 2001 (ACT)
1 mention (from Para 1)