Zirilli v The Queen

In the matter of Zirilli v The Queen, the court was presented with an appeal by the applicant against their conviction, focusing on the discovery that their former counsel, who had represented them during the bail application and a special mention, was acting as a police informer related to the drug offences for which the applicant was convicted. The applicant argued that the exceptional circumstances required for bail pending appeal had been met due to this new information. The Court of Appeal was tasked with determining whether the exceptional circumstances were present, considering the applicant's concession that reasonable prospects of success, on their own, were insufficient, and the need for strong prospects of success. The court also had to assess the difficulty in evaluating the prospects of success, given that the case was novel, and whether the applicant’s success on the most promising charge would still result in a substantial non-parole period. The court’s decision hinged on whether these factors constituted exceptional circumstances warranting bail.

The legal issues before the court included whether the newly discovered information about the applicant’s former counsel constituted exceptional circumstances that would justify bail pending appeal. The applicant argued that the discovery of their counsel's role as a police informer at the time of the bail application and special mention was critical, and that this warranted a re-evaluation of the bail application. The court had to determine whether the exceptional circumstances required to grant bail were present, and if the applicant's prospects of success were strong enough to meet this threshold. The court also needed to consider whether the difficulty in assessing the prospects of success in a novel case constituted exceptional circumstances.

In addressing these issues, the court found that the applicant had not demonstrated exceptional circumstances. While the discovery about the former counsel was significant, the court noted that the applicant had conceded that reasonable prospects of success, on their own, were not enough to constitute exceptional circumstances. The court held that strong prospects of success were required, and the applicant's prospects on two of the three charges were no more than reasonable. Furthermore, even if the applicant succeeded on the most promising charge, it would not eliminate the substantial non-parole period they would still need to serve. The court distinguished the case from Cvetanovski v The Queen, finding that the exceptional circumstances were not made out. Consequently, the application for bail pending appeal was refused.

The court made no order for bail pending appeal, affirming that exceptional circumstances had not been demonstrated. The applicant's prospects of success, even on the most promising charge, did not meet the threshold for exceptional circumstances, and the difficulty in assessing these prospects in a novel case did not sufficiently establish such circumstances. The court's decision was based on the need for strong prospects of success and the substantial non-parole period that would remain even if the appeal were successful on one charge.