Sherd v The Queen

Case [2011] ACTCA 17


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.

Supreme Court Act 1933 (ACT), ss 37, 37E, 37J, 37Q, Pt 2A
Bail Act 1978 (NSW), ss 30, 30AA
Criminal Procedure Act 2009 (Vic), s 310
High Court Rules 2004 (Cth), r 8.07.2
Bail Act 1992 (ACT), ss 9E, 20B, 57AA
Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A
Legislation Act 2001 (ACT)
Federal Court of Australia Act 1976 (Cth), ss 29, 29A, 30AL
Commonwealth of Australia Constitution Act (Cth), s 73

Bail Act (NT), s 23A
Bail Act 1982 (WA), Sch 1 Pt C cl 4A

Practice Direction No. 1 of 1999

Ettridge v Director of Public Prosecutions (Qld) (2003) 78 ALJR 157
Griffiths v Australian Postal Commission (1987) 87 FLR 139
In the Matter of an Application for Bail by Hillier [2007] ACTCA 9
Chamberlain v The Queen (No 1) (1983) 153 CLR 514
Das and Ors v The King-Emperor (1945) 61 TLR 245
R v Spilsbury [1898] 2 QB 615
Ex parte Blyth [1944] KB 532
Ex parte Speculand [1946] KB 48
Tait v The Queen (1962) 108 CLR 620
United Mexican States v Cabal and Ors (2001) 209 CLR 165
Ex parte Maher [1986] 1 Qd R 303
Marotta v The Queen (1999) 73 ALJR 265
Markovina v The Queen (1998) 72 ALJR 1522
Chew v The Queen (1991) 66 ALJR 209
Roos v Director of Public Prosecutions (1994) 68 ALJR 632
Edelsten v Ward (No 2) (1988) 63 ALJR 346
Eastman v The Queen (1997) 72 FCR 190
Narain v Director of Public Prosecutions (1987) 71 ALR 248
Hayes v The Queen (1974) 48 ALJR 455
Whan v McConaghy (1984) 153 CLR 631
Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169
R v Collins (1986) 41 SASR 208
Brown v The Queen [1979] Tas R 304
Re Zoudi (2006) 14 VR 580
Chew v The Queen (No 2) (1991) 66 ALJR 221
Robinson v The Queen (1991) 65 ALJR 519
Parsons v The Queen (1998) 72 ALJR 1325
Re Jackson [1997] 2 VR 1

Bulejcik v The Queen (1995) 70 ALJR 144

Kostikidis & Anor v The Queen (1996) 71 ALJR 79

Peters v The Queen (1996) 71 ALJR 309

R v Antoun [2005] NSWCCA 270

Re Pinkstone’s Applications (2003) 77 ALJR 1561
Hanson v Director…

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Details
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.

Orders

Orders of the court

1.

The application for bail is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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