BENJAMIN THOMAS SHERD v THE QUEEN [2011] ACTCA 17 (22 September 2011)
PROCEDURE – courts and judges generally – bail – jurisdiction of Court of Appeal to grant bail pending appeal – Court of Appeal has jurisdiction.
CRIMINAL LAW – jurisdiction, practice and procedure – bail – jurisdiction of Court of Appeal to grant bail pending appeal – Court of Appeal has jurisdiction.
APPEAL AND NEW TRIAL – in general and right of appeal – bail – jurisdiction of Court of Appeal to grant bail pending appeal – Court of Appeal has jurisdiction.
CRIMINAL LAW – jurisdiction, practice and procedure – bail – pending appeal – need for special or exceptional circumstances – family hardship not a special or exceptional circumstance.
Re Pinkstone’s Applications (2003) 77 ALJR 1561 Hanson v Director…
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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AGLC
Sherd v The Queen [2011] ACTCA 17
Case
[2011] ACTCA 17
Decision Date
CaseChat Overview and Summary
Sherd applied to the Court of Appeal for bail pending the determination of his appeal against conviction. The central dispute concerned the jurisdiction of the Court of Appeal to grant bail in such circumstances and the criteria that must be met for such an application to succeed.
The Court of Appeal was required to determine whether it possessed the inherent jurisdiction to grant bail to a convicted person pending an appeal against that conviction. Furthermore, the Court had to consider whether any specific circumstances, such as family hardship, constituted "special or exceptional circumstances" that would warrant the exercise of such jurisdiction.
In its reasoning, the Court affirmed that it possessed the inherent jurisdiction to grant bail pending an appeal. However, it clarified that the exercise of this jurisdiction is not unfettered and typically requires the demonstration of special or exceptional circumstances. The Court held that family hardship, while a significant personal consideration, did not, in itself, amount to the special or exceptional circumstances necessary to justify granting bail in this instance. Consequently, the application for bail was dismissed.