The ACT Court of Appeal has handed down a much-anticipated decision on whether it has the power to grant bail to sentenced prisoners awaiting an appeal.
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Five men who are appealing against their sentences had asked to be freed on bail with lawyers arguing that the court had jurisdiction to order their release.
But prosecutors had argued a flaw in the territory's legislation meant the appeals court did not have that jurisdiction.
Yesterday Justice Richard Refshauge found he had the power to grant appeal bail after a legal challenge that had been watched with interest by the criminal law fraternity.
He announced his intention to release two of the five men on bail but dismissed the applications of the other three men. ''I find that, as a single judge of the Court of Appeal, I have power to stay proceedings and as an incident of that power, I have the power to grant bail,'' he wrote.
Justice Refshauge said special and exceptional circumstances would have to apply before prisoners could be granted appeal bail, such as a very strong prospect of winning their appeals or the fact that the bulk of someone's jail term would be served by the time their appeal was heard.
The judge said that two of the five men, Edward Graham Aldridge and Timothy James West, had proven special and exceptional circumstances, though he said their appeals were ''arguable'' rather than highly likely to succeed.
Aldridge's partner has been sentenced to three months' weekend jail and their two young children, including a newborn baby, would be left without any parental care if their father was not given bail.
Justice Refshauge found Timothy West had grounds for bail because he needed a renewal of his Naltrexone implant, which helped combat drug cravings. The treatment is not available in the territory's jail.
Both men would also have served large portions of their jail sentences by the time their appeals came before the court in February next year. But Justice Refshauge knocked back applications for bail from three other men, Benjamin Thomas Sherd, Steven Paul Beattie and David John Welch. The trio were convicted and jailed for a vicious backyard bashing in Giralang last year.
Welch is also serving time for an unrelated assault at the Kaleen Indoor Sports Club in 2007.
All three have lodged appeals against the severity of their sentences. Justice Refshauge said none of the men had proved special and exceptional circumstances existed, though he recommended Welch's appeal should be brought forward and urged prison health authorities to ensure the man had a proper supply of anti-epilepsy medication.
He also dismissed Benjamin Sherd's application for a stay on his sentence.
Director of Public Prosecutions Jon White said his office would examine the judgements and consider its position.
Justice Refshauge will hear Aldridge and West's bail matters today.