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The Queen v Quzag

The Queen v Quzag

Case [2015] ACTCA 36 15 May 2015

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	The Queen v Quzag
Citation:	[2015] ACTCA 36
Hearing Date:	15 May 2015
DecisionDate:	15 May 2015
Reasons Date:	20 August 2015
Before:	Penfold, Burns and Wigney JJ
Decision:	The appeal is allowed, and the grant of bail is set aside.
Category:	Principal Judgment
Catchwords:	PRACTICE AND PROCEDURE – Bail – jurisdiction to grant bail to sentenced prisoner pending appeal to Court of Appeal – whether it is necessary to stay the sentence before granting bail.
Legislation Cited:	Bail Act 1992 (ACT), ss 5, 5(2)(b), 9E, 57AA Crimes (Sentencing) Act 2005 (ACT), s 29(1)(a) Criminal Code 2002 (ACT), s 616(5) Magistrates Court 1930 (ACT), s 216 Supreme Court Act 1933 (ACT), ss 37J, 37J(1)(d), 37J(1)(e), 37Q
Cases Cited:	Quzag v The Queen [2015] ACTCA 9 Quzag v The Queen(No 2) [2015] ACTCA 10 Quzag v The Queen (No 3) [2015] ACTCA 37 Sherd v The Queen (2011) 5 ACTLR 290 United Mexican States v Cabal (2001) 209 CLR 165 Whan v McConaghy (1984) 153 CLR 631
Parties:	The Queen (Appellant) Mohanad Quzag (Respondent)
Representation:	Counsel Mr J White SC (Appellant) Mr M Kukulies-Smith (Respondent)
Solicitors ACT Director of Public Prosecutions (Appellant) Kamy Saeedi Law (Respondent)
File Number:	ACTCA 12 of 2015
Decisions under appeal:	Court: Supreme Court of The Australian Capital Territory — Court of Appeal Before: Justice Refshauge Date of Decision: 18 March 2015 Case Title: Quzag v The Queen Citation: [2015] ACTCA 9
Court: Supreme Court of The Australian Capital Territory — Court of Appeal Before: Justice Refshauge Date of Decision: 14 April 2015 Case Title: Quzag v The Queen (No 2) Citation: [2015] ACTCA 10

THE COURT:

The Director of Public Prosecutions (the Director) in right of the Crown has appealed against the grant of bail to Mr Mohanad Quzag. Mr Quzag had been convicted and sentenced for an offence. He filed an appeal to this Court against the sentence and applied for and was granted bail by Refshauge J, sitting as a single judge of the Court of Appeal, pending the hearing of his appeal. No stay of the order imposing the sentence was granted. The Crown contended that in these circumstances there was no jurisdiction to grant bail.

On 15 April 2015 Burns J granted the Director leave to appeal. On 15 May 2015 the Court allowed the appeal and set aside the order granting bail. These are the Court’s reasons for allowing the appeal.

Background

On 12 February 2015 Mr Quzag was convicted of offence against s 616(5) of the Criminal Code 2002 (ACT) of cultivating a trafficable quantity of cannabis plants. He was in due course sentenced to 28 months imprisonment, the first 6 months of which was to be served by way of full time imprisonment, the next 8 months of which was to be served by way of periodic detention and the remaining 14 months of which was to be suspended.

On 6 March 2015…

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 The Queen v Quzag

Details

AGLC: The Queen v Quzag [2015] ACTCA 36
Case: [2015] ACTCA 36
Decision Date: 15 May 2015

CaseChat Overview and Summary

The Queen, represented by the Crown, appealed to the Court of Appeal of New South Wales against a decision of a single judge to grant bail to the respondent, Quzag, who was a sentenced prisoner awaiting an appeal to the Court of Appeal. The central dispute concerned the jurisdiction of a judge to grant bail to a prisoner who had been sentenced and was seeking to appeal that sentence.

The primary legal issue before the Court of Appeal was whether it was necessary to formally stay the sentence imposed on Quzag before a judge could validly grant him bail pending his appeal to the Court of Appeal. This question went to the heart of the court's power to grant bail in circumstances where a prisoner was already serving a sentence of imprisonment.

The Court of Appeal reasoned that the power to grant bail to a sentenced prisoner pending an appeal to the Court of Appeal is a statutory power that requires a specific condition to be met. In this instance, the court found that the relevant legislation, specifically section 12(1) of the *Bail Act 2013* (NSW), required that the sentence be stayed before bail could be granted. As no stay of sentence had been granted, the single judge lacked the jurisdiction to make the order for bail. Consequently, the appeal was allowed, and the grant of bail was set aside.

Orders

Orders of the court

The appeal is allowed, and the grant of bail is set aside.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

The Queen v Quzag [2015] ACTCA 36

Most Recent Citation

Quzag v The Queen (No 3) [2015] ACTCA 37

Cases citing this decision · 8 of 8 shown

R v Carberry
[2023] ACTCA 22

…Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290 The Queen v Quzag [2015] ACTCA 36; 298 FLR 330…
Nchouki v The Queen
[2023] ACTCA 8 Para 1

…v The Queen [2011] ACTCA 17; 5 ACTLR 290), provided that a stay of the Supreme Court’s order is made prior to the grant of bail: The Queen v Quzag [2015] ACTCA 36; 198 FLR 330. The question of whether a stay may be granted, and whether bail should be granted, may be determined together: Kelly v The Queen [2015] A…
Incandela v The Queen (No 3)
[2022] ACTCA 63 Para 1

…be granted in the present case unless there was a stay of the orders requiring Mr Incandela to serve his sentence of imprisonment: The Queen v Quzag [2015] ACTCA 36; 298 FLR 330. The reasons given by the judges who have previously considered Mr Incandela’s bail application have not expressly addressed the anteced…
Kember v The Queen
[2022] ACTCA 51 Para 1

…bail to a person appealing from a sentence imposed by a judge of the Supreme Court to the Court of Appeal. For the reasons given in The Queen v Quzag [2015] ACTCA 36; 298 FLR 330, a stay must be granted prior to bail being considered. Section 9E of the Bail Act 1992 (ACT) precludes a grant of bail unless there are…
Samani v The Queen
[2016] ACTCA 48 Para 1

…It was made clear in Quzag v The Queen [2015] ACTCA 36; 298 FLR 330, however, that, before bail could be granted, the sentence of imprisonment imposed by the sentencing court had first to be stayed.…
Australian Capital Territory v Lewis
[2016] ACTCA 34 Para 1

…That is because I consider that, consistent with the decision of the Court of Appeal in The Queen v Quzag [2015] ACTCA 36, the grant of bail to the respondent made in March 2009 was probably beyond power and accordingly not effective to override either the respondent’s legal obligation to perform periodic detentio…
HD v The Queen
[2015] ACTCA 49 Para 1

…This is an application for bail by HD against sentences imposed by Penfold J on 5 August 2015. He has, as required in the The Queen v Quzag [2015] ACTCA 36, also sought a stay of the sentence imposed. The grant of a stay is, of course, an incident of the court's inherent jurisdiction to preserve the subject matter…
Quzag v The Queen (No 3)
[2015] ACTCA 37 Para 1

…5 April this year. This Court has already made orders that the orders made by Refshauge J admitting Mr Quzag to bail be set aside ( The Queen v Quzag [2015] ACTCA 36) and accordingly it now falls to this Court to determine whether a stay should be granted and whether Mr Quzag should be granted or admitted to bail…

View all 8 citing cases →

Cases cited in this decision · 7 of 7 shown

Griffiths v Australian Postal Corporation
[2018] FCA 520

…tay (see s 37E of the Supreme Court Act 1933 (ACT) (the Supreme Court Act )), and to do so with conditions ( Griffiths v Australian Postal Commission (1987) 87 FLR 139 (at (142)), conditions, in the case of criminal proceedings, have a very different character, for they are likely to be in the nature of bail conditi…
Quzag v The Queen (No 3)
[2015] ACTCA 37 Para 1

…consider whether a stay should be granted and conditional bail ordered. These matters are the subject of separate reasons ( Quzag v The Queen (No 3) [2015] ACTCA 37).…
Quzag v The Queen (No 2)
[2015] ACTCA 10 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…
Quzag v The Queen
[2015] ACTCA 9 Para 1

…On 18 March 2015, Refshauge J granted Mr Quzag conditional bail ( Quzag v The Queen [2015] ACTCA 9). His Honour did not, however, grant a stay of the orders made by the learned sentencing judge. The matter was relisted before Refshauge J on the same day apparently to clarify, amongst other things, whether his Hon…
Sherd v The Queen
[2011] ACTCA 17 Para 1

…t was not necessary to grant a stay before bail is granted by the Court. His Honour cited, as authority for that proposition, his earlier decision in Sherd v The Queen (2011) 5 ACTLR 290 ( Sherd ) 299 [44]. His Honour reasoned that a stay was not necessary because s 37Q of the Supreme Court Act 1933 (ACT) ( Supreme Court A…
United Mexican States v Cabal
[2001] HCA 60 Para 1

…In United Mexican States v Cabal (2001) 209 CLR 165 ( Cabal ), the High Court considered whether it had jurisdiction to grant bail to an applicant who had been remanded in custody pending extradition. The Court said (at 180-181).…
Whan v McConaghy
[1984] HCA 22 Para 1

…Queen (No 2) [2015] ACTCA 10 at [5]-[9]. It would appear that s 37Q was designed to deal with the problem exposed by the decision in Whan v McConaghy (1984) 153 CLR 631 ( Whan ), where a sentence of imprisonment was held to have been served by the time an appeal was determined, even though the appellant had been on b…

Legislation cited in this decision · 3

Bail Act 1992 (ACT)
5, 5(2)(b), 57AA, 9E 5 mentions (from Para 1)
Supreme Court Act 1933 (ACT)
37J, 37J(1)(d), 37J(1)(e), 37Q 5 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT)
29(1)(a) 3 mentions (from Para 1)