The test for bail pending appeal under s 30AA of the Bail Act 1978 (NSW) is the same common law test applied by the High Court; the only practical difference is that the High Court has already assessed prospects of success by granting special leave. The grant of special leave alone is insufficient to establish special or exceptional circumstances. Prolonged incarceration pending appeal may approach the threshold of special or exceptional circumstances, particularly where delay is not attributable to the applicant.
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