Has your bail application been refused at the Supreme Court of NSW?

In accordance with section 67 of the Bail Act, the Court of Criminal Appeal may hear an application for bail in limited circumstances. Such circumstances are where the Court has ordered a new trial and it has not commenced or; where the Court has made an order to continue committal proceedings in accordance to section 8A of the Criminal Appeal Act or; where the Court has directed a stay of execution of a conviction or; where an appeal from the Court is pending in the High Court or; where a bail decision has been made by the Land and Environment Court, Industrial Court or the Supreme Court.

Obtaining bail in the Court of Criminal Appeal is complex and requires the applicant to have an exceptionally strong case as the examples below where bail was refused demonstrate.


What if I want to apply for bail but have a pending CCA conviction appeal?

If your matter is pending an appeal at the CCA, you can lodge a bail application at the Supreme Court. Section 22 of the Bail Act limits the power of the Court to grant bail pending a CCA appeal unless it can be established that special or exceptional circumstances exist. If the appeal regards a ‘show cause’ offence, the accused will need to establish that special or exceptional circumstances exist to justify a decision to grant bail.


Examples of bail applications made in the Court of Criminal Appeal


Case 1: Seong Won Lee and Do Young Lee v Regina [2012] NSWSC 1168 (28 September 2012)

Whilst the ruling on bail in this matter is based on section 30AA of the old Bail Act, the determinations made on the ‘special or exceptional’ circumstances remains applicable in understanding the current application of section 22 in the current Bail Act.


Case facts

Both accused were convicted on separate counts relating to firearms offences and supply of drugs. One of the grounds of appeal to the resulting convictions was that there was a miscarriage of justice going to the root of the proceedings: the illegal release and possession of the appellant’s compulsory examination before the NSW Crime Commission to the DPP and its use by the prosecutor in the trial against Do Young Lee.


Bail decision

Hall J addressed whether bail could be granted.  A long line of commentary went to the effect that one individual factor or circumstance could be sufficient to establish the required ‘special or exceptional circumstances’ (here, the likelihood of success on appeal given the nature of the appeal: miscarriage of justice). However, where the ‘prospects of success on appeal’ are put forward as a special circumstance in support of a grant of bail after conviction, it is not enough to show a merely arguable ground of appeal. Something more than an arguable ground of appeal must be shown in order to establish the ‘special or exceptional circumstances’.

What must be established is a ‘ground of appeal which is certain to succeed and one which can be seen without detailed argument to be certain to succeed’. The application for bail was dismissed.


Case 2: DPP v SKA (formerly DPP v AZ) [2009] NSWCA 51


Case facts

The accused was convicted of charges relating to aggravated sexual assault and aggravated indecent assault. His Honour ordered the sentence to commence at the date of sentence, but ordered a stay on the execution of the sentences and granted bail in the interim. The accused lodged an appeal against the conviction and sentence. The Crown sought a review of the bail and similarly appealed against the sentence.


Bail decision

The ground of appeal filed on behalf of the respondent against his conviction was that the verdict was unreasonable and not supported by the evidence.

The respondent also submitted that the test in section 30AA (replaced by the current section 22) was not satisfied because the ground of appeal asserted that the verdicts of the jury, which were unreasonable would enjoy ‘an extraordinarily high prospect of success’ on appeal. Buddin J stated that he was prepared to accept that the respondent could point to matters capable of reflecting, at least to some extent, on the reliability of the complainant and the evidence.
On this basis, it would seem that he has at least an arguable case in relation to his appeal against conviction. However, that would not be enough to satisfy the ‘special or exceptional circumstances’. The Bail was revoked.



Nyman Gibson Miralis has over 50 years of experience in successfully obtaining bail for clients across all areas of criminal law.

Contact us if you require assistance.