COVID-19 and Bail Applications in Victoria

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Sophie ParsonsThe article COVID-19 and Bail Applications in Victoria is written by Sophie Parsons, Partner, In House Counsel, Accredited Criminal Law Specialist, Doogue + George Defence Lawyers.

Sophie is based in the Melbourne office and is one of the firm's in-house counsels and trial specialists. She is an experienced criminal lawyer who has appeared in a broad range of legal matters in Victoria and the Northern Territory.

Sophie appears in bail applications, contested hearings, committals, trials, appeals and pleas of guilty, in both the adult and youth jurisdictions. She has also appeared before investigative bodies such as Royal Commissions.

Two People Set Apart By 1.5 MetresIn the current situation, it is vital for anyone that is in remand or arrested, that bail applications are considered, prepared and made.

The COVID-19 pandemic is having a considerable impact on prison populations and the criminal justice system in Victoria. People in custody are likely to serve long periods of time in isolated and unsafe environments.

Corrections Victoria

Corrections Victoria has announced that from 28 March 2020 every person that enters prison custody will be treated as though they have a suspected case of COVID-19. 

  • People that enter prison custody must be quarantined for 14 days in single cells.
  • Dedicated units have been set up separate to the general prison populations in which people can serve the period in protective quarantine.
  • People serving the period in protective quarantine can only mix with people who are at the same stage of the 14-day period.
  • The time permitted out of cells will be significantly limited. It will only be permitted if DHHS guidelines on physical distancing can be maintained and as deemed necessary based on clinical advice from health professionals, unless it is required due to emergency events and court appearances.
  • Personal and professional visits will be limited to phone calls and video visits.

Pandemics and prisons

It is well-known that the spread of disease, including respiratory disease, is higher in prisons than the general community.  The threat of the impact and possible consequences of COVID-19 on prison populations is very real.

The World Health Organisation regularly publishes information about pandemics and prisons. It is generally the combination of a high number of prisoners and prison conditions; such as inadequate access to treatment, close living conditions and repeated prison transfers that has been found to increase the spread of disease.

The health guidelines published by the Victorian government as at March 2020 acknowledge that people are at greater risk of contracting the disease in high-density environments (such as prisons). COVID-19 is spread through close contacts with people infected by the virus or by contact with contaminated hands, surfaces or objects. It is extremely difficult for people in prisons to maintain safe distancing, avoid crowded places and minimise their risk of contracting the disease in line with current health advice. This is particularly concerning for people in prison and at greater risk of contracting the disease or suffering more severe symptoms.

Considerations for bail applications

The Bail Act 1977 (Vic) requires that a bail decision maker must consider the “surrounding circumstances” that are relevant to a grant of bail, including a person’s personal circumstances and any special vulnerability.

If there is reason that a person is at greater risk of suffering from COVID-19, the following conditions may be relevant factors for “surrounding circumstances”.

  • If a person is only recently arrested, have they been exposed or at risk of exposure to COVID-19?
  • Are they Aboriginal or Torres Strait Islander?
  • Are they an older person, with pre-existing medical conditions (such as high blood pressure, heart disease, lung disease, cancer or diabetes)?
  • Are they vulnerable because of other factors such as long-term addictions?
  • Do they suffer a mental illness that means their ability to cope with the current crisis or conditions that may be imposed in custody are impacted significantly (i.e. repeated and lengthy lockdowns)?

The reality is that many cases presently before the courts in Victoria are unlikely to be heard within a reasonable time frame. Contested hearings, contested committals and jury trials are not presently being heard by the courts. The delay may cause matters to be adjourned for months or even years.

  • If a person is on remand and contesting charges, when is their matter likely to be heard?
  • Are they likely to serve a sentence that is lesser than the time spent in custody?
  • Has a person previously been refused bail, but are now considered at greater risk of contracting COVID-19?
  • Has a person previously been refused bail, but are now at risk of serving a long time in custody because of delay?

Another factor may be that the thresholds that apply to bail are more easily met or overcome because of COVID-19 risks. This means that the combination of factors could be strengthened in an individual case and bail more likely to be granted.

The courts are also continuing to deal with applications to vary conditions of bail. COVID-19 may make it harder for a person to comply with current bail conditions. If a person is quarantined or self-isolating at home, they may be unable to comply with bail conditions such as reporting to police stations and drug tests. Even if they can comply, it may not be in the broader interest of the community that they do so.

If we consider the public campaigns in the current climate, such as social distancing and self-isolation along with the trending #stayathome and #flattenthecurve and what they are trying to achieve, have we contemplated what this means for people in custody or on strict bail conditions? Every person in custody should know about their right to apply for bail in the present circumstances of COVID-19.

If you know someone who has been recently arrested, or is presently in custody, contact Doogue + George Defence Lawyers for legal advice and assistance on (03) 9670 5111.

Date Published: 31 March 2020

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