Shortland v The Queen

In *Shortland v The Queen*, Brownhill J of the Supreme Court of the Northern Territory considered an application for bail pending appeal. The applicant, convicted of drug importation offences, sought bail under section 23A of the *Bail Act 1982* (NT), arguing for the existence of special or exceptional circumstances. The prosecution opposed the application, contending that the prospects of success on appeal were insufficient to warrant the grant of bail.

The legal issues before the Court were whether the applicant had demonstrated special or exceptional circumstances justifying bail, and whether the grounds of appeal raised issues of real substance concerning flaws in the trial process or the unreasonableness of the jury's verdict. Specifically, the applicant argued that the trial jury had not been adequately directed on the fault element applicable to the offence in count 2, nor on the legal bases for fixing liability for conduct committed by another person. This was argued to be a fundamental error, akin to a direction of strict liability, and potentially a miscarriage of justice.

Brownhill J held that it is incumbent upon a convicted person seeking bail pending appeal to demonstrate to the Court of Criminal Appeal that there is an issue of real substance regarding a significant flaw in the trial process or an unreasonable jury verdict. The onus rests on the applicant to establish why bail should be granted, and that the reasons for doing so are exceptional. The Court found that the grounds of appeal, including those relating to alleged latent duplicity in a count and the lack of specific directions on commission by proxy, aider, abettor, or joint criminal enterprise, did not give rise to special or exceptional circumstances justifying the grant of bail. The Court noted that the Crown's case at trial was put on a particular construction of the relevant legislative provisions, which was not challenged by the defence at the time.

Consequently, the application for bail was refused.