Cvetanovski v The Queen - [2020] VSCA 126

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0199
S APCR 2017 0200
S APCR 2017 0201
S APCR 2018 0279

ZLATE CVETANOVSKI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, BEACH and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 May 2020
DATE OF JUDGMENT:	19 May 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 126
JUDGMENT APPEALED FROM:	DPP v Cvetanovski (Unreported, County Court of Victoria, Judge Montgomery, 13 April 2012); DPP v Cvetanovski (Unreported, County Court of Victoria, Judge Coish, 4 February 2014)

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CRIMINAL LAW – Appeal – Bail – Application for bail pending appeal – Whether exceptional circumstances exist – Appeal unable to be dealt with until after expiry of non-parole period – No suggestion applicant unlikely to be released at expiration of non-parole period – No suggestion applicant poses unacceptable risk – Exceptional circumstances established – Application for bail granted – Re Zoudi (2006) 14 VR 580 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Condon QC with Ms K Farrell	Galbally Parker Lawyers
For the Respondent	Mr B F Kissane QC with Ms K A O’Gorman	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
BEACH JA
WEINBERG JA:

Summary

An application for bail by a person who is appealing against his/her conviction or sentence is quite different from a bail application by a person who is yet to be tried. In the latter case, the presumption of innocence applies and there is, under the Bail Act 1977, a presumption in favour of a grant of bail.[1]
[1]Bail Act1977 s 4.

Bail pending appeal, on the other hand, will only be granted in exceptional circumstances. The stringency of this requirement reflects the fact that the conviction and sentence are valid unless and until set aside, and are not in any sense provisional or contingent upon confirmation by an appellate court.[2] A grant of bail pending appeal also carries with it the risk that, should the appeal fail, the convicted person will have to return to prison.
[2]Re Zoudi (2006) 14 VR 580, 588 [28]; [2006] VSCA 298 (‘Re Zoudi’).

In Re Zoudi, this Court held that the exceptional circumstances requirement may be satisfied where the appeal cannot be dealt with by the court until after the expiry of the appellant’s non-parole period. The fundamental principle is one of fairness.[3] Bail is granted in order to avoid the injustice which would arise should the appellant end up serving more time in custody than would be lawfully justified in the event that the appeal succeeds. In that event, success on appeal is effectively rendered meaningless.
[3]Ibid 587 [25].

The present applicant relies on circumstances of precisely that kind. He will be eligible for parole on 3 August this year, having served a non-parole period of more than nine-and-a-half years. There is no prospect of his appeal against conviction being ready for hearing by that time, principally because of continuing delays in the production to…

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.

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Details

Case: [2020] VSCA 126
Decision Date: 19 May 2020

CaseChat Overview and Summary

In the matter of Cvetanovski v The Queen, the respondent, an inmate serving a sentence for a criminal conviction, applied for bail pending the outcome of his appeal against sentence. The application was heard in the Supreme Court of Victoria. The central issue before the court was whether exceptional circumstances existed to justify granting the applicant bail while his appeal was pending. This was particularly pertinent given that the appeal could not be dealt with until the expiration of the non-parole period, and there was no suggestion that the applicant would not be released at that time or that he posed an unacceptable risk to the community.

The court considered the principles established in Re Zoudi, where it was held that the mere fact an appeal could not be dealt with until after the non-parole period did not automatically warrant bail. However, the court recognised that the existence of exceptional circumstances could still warrant a bail decision in favour of the applicant. In this instance, the court found that the exceptional circumstances criterion was met because the appeal's outcome was critical to the applicant's future liberty and there was no indication he would not be released at the end of his non-parole period, nor that he posed an unacceptable risk to the community.

The Supreme Court of Victoria granted the application for bail, recognising that the appeal was of such importance that the applicant should not be required to remain in custody until the appeal was heard. The court relied on the precedent in Re Zoudi, which emphasised that exceptional circumstances could include the significant impact of remaining in custody on the applicant's future liberty. The court's decision was based on the specific facts of this case, where the appeal's potential to alter the applicant's future circumstances was deemed significant enough to warrant bail.

The final orders of the court were that the applicant be granted bail pending the outcome of his appeal, subject to certain conditions. These conditions were designed to ensure the applicant's appearance at any required court hearings and to mitigate any risk to the community. The court's decision highlighted the importance of considering the unique circumstances of each case when determining whether to grant bail pending appeal.

Orders