Re Zoudi

Case [2006] VSCA 298 19 December 2006

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 1482 of 2006

IN THE MATTER OF AN APPLICATION FOR BAIL

JACK ZOUDI

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JUDGES:	MAXWELL, P., BUCHANAN, NETTLE, NEAVE and REDLICH, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 June 2006
DATE OF REASONS:	19 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 298

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CRIMINAL LAW – Appeal – Bail pending appeal – Exceptional circumstances – Likelihood that non-parole period will have expired before appeal heard – Whether distinction between non-parole period and partly-suspended sentence should be maintained – Re Pennant [1997] 2 VR 85 not followed – Bail granted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P.A. Coghlan, Q.C. with Mr M.A. Gamble	Ms A. Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr L.C. Carter with Mr M.J. Gumbleton	Lethbridges

MAXWELL, P.,
BUCHANAN, J.A.,
NETTLE, J.A.,
NEAVE, J.A.,
REDLICH, J.A.:

This is an application for bail pending applications for leave to appeal against conviction and sentence. At the conclusion of argument on 23 June 2006, we announced that we were satisfied that there should be a grant of bail pending the applications for leave to appeal. These are our reasons for that decision.

Summary

Bail pending appeal will only be granted where exceptional circumstances are shown.[1] It has long been accepted in this Court that, in determining whether exceptional circumstances exist, it is relevant to consider the likely expiry, before the appeal is heard, of the whole or a substantial portion of –

(a) the non-suspended portion of a partly-suspended sentence;[2] or

(b) the period after which the applicant is to be released on recognisance.[3]

[1]The phrase “very exceptional circumstances” is also commonly used, but the approach is the same whichever form of words is used: Re Clarkson [1986] VR 583 at 584 per Murray, Brooking and Vincent JJ; Re Crawley (unreported, Court of Appeal, 5 August 1998) per Callaway JA.

[2]Re Pennant [1997] 2 VR 85; Re Schaefer [2006] VSCA 268.

[3]Re Crawley (unreported, Court of Appeal, 5 August 1998) per Callaway JA.

The question which occasioned the convening of a bench of five was whether the likely expiry of a non-parole period was likewise a relevant consideration. Although the course of decisions in this Court began differently,[4] the view which has prevailed since 1997 is that the expiry of the non-parole period is not relevant for this purpose. The ground of distinction which has been relied on is that the release of the applicant after the expiry of the non-parole period depends upon a favourable exercise of discretion by the Parole Board. This means that, unlike the position with a partly-suspended sentence and release on recognisance, the date of release is uncertain.[5]
[4]In Re Hoxha (unreported, Court of Appeal, 19 July 1995) and Salvo (unreported, Court of Appeal, 22 November 1995), the expiry of a non-parole period was treated as a significant factor.
[5]Re Pennant (supra) at 86-7.

In our view, this distinction should no longer be maintained. For the…

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 Re Zoudi

Details

AGLC: Re Zoudi [2006] VSCA 298
Case: [2006] VSCA 298
Decision Date: 19 December 2006

CaseChat Overview and Summary

The case of Re Zoudi involved an appeal against a decision that denied the applicant bail pending appeal. The applicant, Zoudi, faced a criminal conviction and was currently serving a sentence. The court of appeal was required to determine whether exceptional circumstances existed to justify granting bail while the appeal process was ongoing. A key consideration was whether the non-parole period of Zoudi’s sentence would have expired by the time the appeal was heard, which could impact the decision on bail.

The central legal issue was whether the distinction between a non-parole period and a partly-suspended sentence should continue to be upheld in determining bail applications in exceptional circumstances. The court examined the precedent set by Re Pennant [1997] 2 VR 85, which suggested a rigid approach to such distinctions. However, the court found that maintaining this distinction was not appropriate in this case. The court emphasised the need for a flexible approach, taking into account the unique circumstances of each case.

The court ultimately decided that the exceptional circumstances did warrant granting bail. It held that the distinction between non-parole periods and partly-suspended sentences should not be rigidly applied in all cases, particularly when the non-parole period would have expired before the appeal could be heard. The court concluded that Zoudi’s prospects for success on appeal, combined with the likelihood that the non-parole period would have ended by the time of the hearing, justified the granting of bail. The court thus granted Zoudi bail pending the appeal.

Orders