1Where an appeal from a Magistrates Court conviction stays the sentence under s 216 of the Magistrates Court Act 1930 (ACT), an application for release pending the appeal is an exercise of the Supreme Court's power to grant bail, not an ancillary power to grant a stay.
2The expiry of the custodial portion of a sentence before the appeal is determined may constitute special or exceptional circumstances under s 9E of the Bail Act 1992 (ACT), but only if the appeal also has reasonable or realistic prospects of success, which is part of the special or exceptional circumstances inquiry (Nchouki v The Queen [2023] ACTCA 8).
3On a bail application the court should not try the appeal; on the facts, a ground that is arguable though not strong was sufficient, together with the imminent expiry of the custodial portion, to establish special or exceptional circumstances, even though the court doubted the prudence of the application given the risk of return to custody if the appeal failed.
