Suzie Cameron


Simon Zebrowski


Bail pending an appeal

If an accused person is convicted of an offence and sentenced in the Magistrates’ Court and lodges an appeal against their conviction and/or sentence (to be heard in the County Court), they may apply for bail in the Magistrates’ Court pending the hearing of the appeal.

The Magistrates’ Court must determine the application as if the accused was charged and is awaiting hearing for the offence subject of the appeal (s 265(2) Criminal Procedure Act 2009 (Vic)). The test to be applied is the same test that would apply to an application for bail at the first instance (see Re ML [2022] VSC 10).

While it depends on the individual facts of the case, it is common for an accused person to be granted bail on conditions if they have an appeal pending in the County Court, particularly if the person has been on bail and has complied with all the bail conditions before the hearing of the charges in the Magistrates’ Court.

If an accused person is convicted of an offence and sentenced in the County Court or Supreme Court and lodges an appeal against their conviction and/or sentence (in the Court of Appeal), they may apply for bail pending the hearing of the appeal in the Court of Appeal.

However, a grant of bail pending an appeal to the Court of Appeal is very uncommon. It will only be granted in very exceptional circumstances. The justification for this is that the verdict of the jury should be regarded as final and not conditional.

Accordingly, unless a person is able to demonstrate that they will have served the entirety of their sentence before an appeal being heard, or that their appeal will most likely succeed and the conviction will be set aside, they will remain in custody until the appeal is heard (see Lennon [2016] VSC 239).

In Madafferi v The Queen [2021] VSCA 332, the court said: ‘There is no hard-and-fast rule for how much of a term of imprisonment or non-parole period needs to expire before consideration can be given to granting bail. Each case depends upon its own facts.’

The Supreme Court has an inherent jurisdiction to grant bail to people awaiting trial for indictable offences (see R v Light [1954] VLR 152; R v Broome [1955] VLR 208).

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