Re Momcilovic

In the matter of Re Momcilovic, the applicant, who was convicted of several criminal offences, sought bail pending an appeal against his conviction and sentence. The case was heard in the Court of Appeal. The primary issue for the court was whether the applicant had demonstrated exceptional circumstances that would warrant the granting of bail pending appeal. Additionally, the court had to determine whether the appeal against conviction was bound to succeed, particularly in light of the Crown's concession of a sentencing error and the likelihood that the custodial portion of the applicant's sentence would be reduced on appeal. The court also considered the risk that, if bail were not granted, the applicant would serve a longer period in custody than the minimum custodial term likely to be imposed upon re-sentencing.

The court's reasoning was influenced by the case of Re Zoudi, where it was held that exceptional circumstances could include situations where an appeal against conviction is likely to succeed, and the applicant may otherwise serve a longer term in custody than the minimum likely to be imposed on re-sentencing. The Crown's concession of a sentencing error and the likelihood of a reduced custodial sentence on appeal were significant factors. The court noted that the applicant had a strong prospect of success on appeal and that the concession of error by the Crown indicated a high probability of a reduction in the custodial sentence. The risk of the applicant serving a longer term in custody before the appeal could be heard was also a critical consideration. The court referenced the decision in Re DBA, which emphasised the importance of the applicant's right to challenge their conviction and sentence without unnecessary delay.

Given the exceptional circumstances, the court concluded that it was appropriate to grant bail pending appeal. The likelihood of success on appeal, the concession of sentencing error, and the potential for the applicant to serve an unduly lengthy term in custody before the appeal could be heard were all compelling reasons for granting bail. The court's decision was grounded in the need to balance the applicant's right to appeal against the interests of the community and the finality of criminal convictions.

The final orders of the court were that the applicant be granted bail pending the hearing of the appeal against his conviction and sentence. The court set specific conditions for the bail, including a requirement for the applicant to reside at a specified address and to surrender his passport. The applicant was also required to report to a specified police station on a regular basis.