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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:

1. 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.

2. 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

3. 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.

4. On 6 March 2015 Mr Quzag appealed against the sentence that was imposed on him. He contended that the sentence was manifestly excessive, was erroneous on the basis that there was a lack of parity between his sentence and the sentences imposed on his co-offenders, and was contrary to s 29(1)(a) of the Crimes (Sentencing) Act 2005 (ACT).

5. On 13 March 2015 Mr Quzag sought a stay of the sentence and the consequential grant of bail pending the determination of his appeal.

6. In support of that application, Mr Quzag argued that his appeal would not be heard until the August sittings of this Court and that by that time he would have substantially served out the full time custody component of his sentence.

7. 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 Honour had or should have granted a stay of the sentence.

8. 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, 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 Act) provides that “any time spent on bail pending the decision on appeal does not count as part of any term of imprisonment.”

9. As noted, the Director’s appeal raised the question whether Refshauge J had jurisdiction to grant bail in the absence of a stay of the sentence.

10. At the hearing of the appeal Mr Quzag made no submissions in relation to the point of principle raised by the Director. His submissions were effectively directed solely to the question of what should occur if the appeal was allowed and the bail order set aside. He submitted that the Court should then make an order staying the sentence order and granting bail on the same terms as originally ordered.

Relevant statutory provisions

11. Section 5 of the Bail Act 1992 (ACT) (Bail Act) provides as follows:

When may bail be granted? (1) An accused person may be granted bail in relation to any period when the person is not required to attend court in relation to the offence with which the person has been charged.

(2) However, an accused person who is in custody in relation to an offence must not be granted bail in relation to any period when—

(a) the person is in custody for another offence or reason in relation to which the person is not entitled to be granted bail; or

(b) the person is serving a sentence of imprisonment.

12. Section 9E of the Bail Act provides as follows:

Bail for person sentenced to imprisonment (1) This section applies if—

(a) a person has been convicted of an offence by a court and sentenced to a period of imprisonment for the offence; and

(b) an appeal is pending in relation to the conviction or sentence.

(2) A court must not grant bail to the person unless satisfied that special or exceptional circumstances exist favouring the grant of bail.

(3) In this section:

appeal includes an appeal against a decision on appeal.

13. The Court’s appellate jurisdiction is conferred by s 37E of the Supreme Court Act. Section 37J of the Act provides that the Court of Appeal may be constituted by a single judge for the purposes of hearing and deciding a number of “incidental matters” in relation to an appeal, including the stay or suspension of the operation of an order from which the appeal is brought, or to which the appeal relates: see s 37J(1)(d) and (e) of the Supreme Court Act.

14. Section 37Q of the Supreme Court Act provides as follows:

Bail time on appeal does not count towards sentence If a person who has been convicted and sentenced to a term of imprisonment appeals to the Court of Appeal (against the conviction, or sentence, or both), any time spent while released on bail pending the decision on the appeal does not count as part of the term of imprisonment.

15. The Director’s submissions may be summarised in five short propositions.

16. First, there is no statutory provision which expressly confers jurisdiction on the Court to grant bail to appellants who have lodged appeals to the Court against convictions and sentences.

17. Second, jurisdiction is not conferred by either s 9E of the Bail Act or s 37Q of the Supreme Court Act.

18. Third, the Court has jurisdiction to grant bail as an incident of its power (reposed in a single judge of the Court) under s 37J(1)(d) of the Supreme Court Act to grant a stay of an order. A grant of bail may be necessary to perfect the stay or to prevent the grant of the stay being futile.

19. Fourth, the effect of s 5 of the Bail Act is to preclude the grant of bail unless a stay of the sentence is first granted. That is because s 5 provides that an accused person must not be granted bail in relation to a period when the person is serving a sentence of imprisonment.

20. Fifth, to the extent that Sherd stands for the proposition that it is unnecessary for a stay to be granted before the Court grants bail, it was wrongly decided.

Consideration

21. The Director’s submissions are correct. The Court’s jurisdiction to grant bail to a person appealing a conviction or sentence depends on the grant of a stay of the sentence. That is because the Court’s jurisdiction to grant bail in these circumstances is incidental to the Court’s jurisdiction to grant a stay.

22. The starting point is that there is no express conferral of jurisdiction on the Court of Appeal to grant bail pending the hearing of an appeal to that Court against conviction and/or sentence (cf s 216 of the Magistrates Court 1930 (ACT), which expressly stays a decision, conviction, order, sentence or penalty that is the subject of an appeal to the Supreme Court under div 3.10.2 of that Act, and expressly provides for an appellant to be either remanded in custody or granted bail).

23. Section 9E of the Bail Act assumes that the Court may have jurisdiction to grant bail when a person has been convicted and sentenced to imprisonment and an appeal is pending. However it does not confer jurisdiction on the Court. Rather, it sets out the circumstances where the Court cannot grant bail. In Sherd, Refshauge J (at [41]-[42]) appeared to accept that s 9E of the Bail Act did not confer jurisdiction on the Court to grant bail, but rather was “at least consistent with” the conclusion that the Court has power to grant bail as an incident of the power to stay the judgment from which the appeal is taken.

24. Nor can it be suggested that s 37Q of the Supreme Court Act confers jurisdiction on the Court to grant bail. The history of s 37Q of the Supreme Court Act was traced by Refshauge J in his judgment declining to grant a stay in this matter: Quzag v The 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 bail. This was a consequence of the fact that the sentence had not been stayed; the applicable legislation provided explicitly, and separately, for the grant of bail pending appeal and the grant of bail after a stay (at 636).

25. Like s 9E of the Bail Act, s 37Q of the Supreme Court Act appears to operate on the basis or assumption that the Court has jurisdiction to grant bail pending the determination of an appeal. It does not, however, in terms confer jurisdiction on the Court to grant bail. Nor does the legislative history, as traced by Refshauge J, suggest, as a contextual consideration, that s 37Q should be construed as conferring jurisdiction on the Court. In Sherd, Refshauge J accepted (at [25]) that s 37Q did not confer jurisdiction on the Court.

26. It will be necessary to say something more at a later stage about the operation of s 37Q of the Supreme Court Act. That is because it appears to be the reason why Refshauge J considered that it was unnecessary to grant a stay of the sentence in this matter. Before doing so, however, something briefly should be said about the basis of the Court’s jurisdiction to grant bail pending an appeal.

27. 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).

In our view, the power to grant bail in a criminal or extradition case is an incident of the power conferred by s 73 of the Constitution to hear appeals from the orders of certain courts. It is not a question of inherent jurisdiction. The grant of judicial power 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 conferred by s 73 of the Constitution. 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. The Court has power, therefore, to stay orders in criminal cases — even orders concerned with sentences of death or imprisonment. When the court grants bail in a criminal case, it does so as an incident in the course of staying the order that is the authority for detaining the prisoner and to make the stay order effective. If there is an application for special leave to appeal or an appeal under s 73 of the Constitution against an order of imprisonment, this court has jurisdiction to stay that order. It also has jurisdiction to grant bail so as to make the stay order effective. Although orders staying proceedings or admitting to bail make the appellate jurisdiction of the Court effective, the orders are made in the original jurisdiction of the Court. (Footnotes omitted; emphasis in original.)

28. The same reasoning applies to the jurisdiction of this Court to grant bail. Appellate jurisdiction is conferred on the Court by s 37E of the Supreme Court Act. The Court’s appellate jurisdiction carries with it the incidental power to stay an order of the court from which an appeal is brought. That is implicit, in any event, from the terms of s 37J, which provides that the Court may be constituted by a single judge to decide “incidental matters”, including the stay of an order. The Court also has power to grant bail as an incident of its jurisdiction to grant a stay so as to make the stay order effective.

29. That the power to stay an order appealed from was a source of the Court’s jurisdiction to grant bail appeared to be accepted by Refshauge J in Sherd at [34] and [41]. His Honour concluded that the power to grant bail is not an exercise of any inherent jurisdiction with respect to bail, and that therefore s 57AA of the Bail Act, which abolishes the inherent power of the Supreme Court to grant bail, was irrelevant. His Honour was correct in concluding that the power to stay an order was the basis of the Court’s jurisdiction to grant bail and that s 57AA of the Bail Act was irrelevant.

30. In Sherd, however, his Honour went on to say (at [44]):

That is important for, as I have noted above (at [9]), although the power to stay or suspend the decision from which an appeal has been taken includes the power to do so with conditions (which, in criminal cases, would be similar, if not identical, to the conditions attaching to a grant of bail) there would be no regime for the monitoring and, if necessary, activating a breach procedure for violations of such conditions if necessary. In this case, s 37Q of the Supreme Court Act seems that [sic] I do not have to make a stay order before granting bail.

31. It is this paragraph of Sherd that his Honour referred to in concluding, in this matter, that it was unnecessary to grant a stay before bail is granted.

32. In paragraph [44] of Sherd, his Honour refers to paragraph [9] of his judgment, which is in the following terms:

It seemed to me that, while the Court of Appeal, constituted by a single judge, has express jurisdiction to deal with a stay (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 conditions. If, however, bail is granted with conditions then there is a regime for ensuring compliance and addressing breaches. On the other hand, where there are merely conditions to the grant of a stay, the regime for ensuring compliance of bail-like conditions is far more problematic.

33. It is, with respect, not easy to follow his Honour’s reasoning in paragraphs [9] and [14] of Sherd. It would appear, however, that his reasoning involves two elements. First, his Honour considered that it was preferable to grant conditional bail, rather than a conditional stay, because there is a specific regime under the Bail Act for ensuring compliance and addressing breaches of bail conditions. Second, his Honour appeared to reason that, because s 37Q of the Supreme Court Act overcomes the problems identified in Whan where bail is granted without a stay, it was unnecessary to grant a stay to overcome that difficulty.

34. That reasoning is, with respect, erroneous and ignores the basis of the Court’s jurisdiction to grant bail in the first place. If, as his Honour correctly accepted, bail can only be granted as an incident of the Court’s jurisdiction to stay a judgment, it is difficult to see how that incidental jurisdiction can be exercised if a stay is not ordered. As the passage from Cabal earlier cited makes plain, bail can and is only granted in these circumstances to make a stay order effective. The incidental power to grant bail in these circumstances only arises if a stay is first granted.

35. His Honour’s concern that it is preferable to make an order granting conditional bail than to make a conditional stay order, whilst perhaps understandable, is no answer to this. In any event, this concern is properly met by granting an unconditional stay together with an order granting conditional bail.

36. His Honour’s point concerning s 37Q of the Supreme Court Act also does not alter the conclusion that the Court only has jurisdiction to grant bail as an incident of the jurisdiction to stay an order. It is true that if a stay is granted, s 37Q would appear to have little work to do. There is no question of a sentence continuing to run if it has been stayed. Thus, the problem that occurred in Whan would not arise even without s 37Q. That may raise interesting questions concerning the proper construction of s 37Q, or about whether that provision remains necessary given the current form of the Bail Act and the Supreme Court Act. It is not necessary to address such questions here. It does not alter the fact that the Court only has jurisdiction to grant bail if the sentence is stayed, because the power to grant bail in these circumstances is only an incidental power.

37. It follows that the primary judge was wrong when he concluded that it was unnecessary to order a stay before granting bail in the circumstances.

38. Two additional points should be made. First, if the Court does not grant a stay of a sentence of imprisonment before granting bail, there is an additional problem of potentially conflicting or inconsistent orders of the Court. On the one hand there is the order of the sentencing judge ordering the person to be imprisoned. On the other hand, there is an order of the judge granting bail, the effect of which is to direct the person to be released from custody. This problem of apparently conflicting directions or orders was adverted to by the High Court in Cabal at [3] in the context of extradition proceedings. The same issue arises in the context of bail pending appeal if the sentence order is not stayed.

39. Second, it is unnecessary to consider the Director’s arguments concerning s 5 of the Bail Act. Section 5 is not a provision that goes to the Court’s jurisdiction to grant bail. Rather, it simply identifies certain circumstances where bail may not be granted. Questions may arise concerning the proper construction of s 5(2)(b) of the Bail Act. It may be that s 5(2)(b) is directed at the situation where a person is serving a sentence of imprisonment in relation to another offence, rather than referring to the sentence of imprisonment which is the subject of an appeal and in respect of which bail is sought pending the resolution of the appeal. It is unnecessary and perhaps undesirable to answer that question here, particularly when there was no contradictor and no substantial argument on this point. However, the express words of s 5(2)(b) do seem to provide another reason not to rely on s 37Q for an implied power to grant bail to a sentenced prisoner without staying the sentence.

Conclusion

40. It was for the above reasons that the Court allowed the appeal on 15 May 2015. The Court then went on to 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). I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate: Kate Harris

Date: 21 August 2015

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Amendments

21 August 2015 Additional cases added to ‘Cases Cited’ (Quzag v The Queen [2015] Front page ACTCA 9; Quzag v The Queen (No 3) [2015] ACTCA 37). 21 August 2015 The initial ‘B’ deleted from the ‘File Number’. Front page 21 August 2015 Additional ‘Decision under appeal’ included. Page 2 21 August 2015 Citation added (Quzag v The Queen [2015] ACTCA 9). Paragraph [7] 21 August 2015 Citation added (Quzag v The Queen (No 2) [2015] ACTCA 10). Paragraph [8] 21 August 2015 Case name changed from ‘The Queen v Quzag [No. 2]’ to ‘Quzag v Paragraph [40] The Queen (No 3)’.