3. Criminal

​A. Bail

i.  Legislation

Victoria:
Bail Act 1977 (Vic):
​New South Wales:
Made under the Supreme Court Act 1970 (NSW):
Australian Capital Territory:
Bail Act 1992 (ACT) amended by the COVID-19 Emergency Response Legislation Amendment Act 2020 (ACT).

ii.  Case law

​Lines of authority have developed on the consideration of COVID-19 in bail applications, which we discuss below.  However, we consider that it is important to consider bail decisions by reference both to locality (the State or Territory in which they are decided) and time (having regard to the specific date on which they were decided). 

​The Commonwealth Department of Health provides simple current and historical graphs showing data on the number of known cases on specific days in each State and Territory, and other data are publicly available.  Spacio-temporal awareness of that kind has been demonstrated in a number of more recent decisions.  For example, in R v Londono-Gomez [2020] SADC 48, the South Australian District Court observed that contentions about COVID-19 had to be considered in the context of what was facing the SA prison system as at the end of April 2020: reported active cases had decreased significantly in SA over the previous three weeks, with no new reported cases on several days, children were being encouraged to return to school, and there had been no reported cases in SA gaols (at [56]).

Numerous courts have considered the impact of COVID-19 on statutory tests requiring courts to be satisfied that certain circumstances exist before granting, or entertaining an application for, bail.

Victoria, Queensland and the ACT

COVID-19 has been held to give rise to “exceptional circumstances” for the purposes of the tests for bail in Victoria and the ACT: see, for example, DPP (Cth) v Sun [2020] vsc 399, [37]-[43]; Re Broes [2020] VSC 128, [42]; Re McCann [2020] VSC 138, [39]-[41]; Re Taylor [2020] VSC 146, [50]-[51]; Re Kennedy [2020] VSC 187, [6]; and Watson v The Queen [2020] ACTCA 16, [8]-[11].

On 21 April 2020, in Re Diab [2020] VSC 196, [38], Beach JA synthesised the following four propositions that had by that time emerged from numerous decisions of the Supreme Court of Victoria as to the relevance of COVID-19 to the establishment of “exceptional circumstances” for the purposes of the Bail Act 1977 (Vic):
  • Delay in trials due to COVID-19 may establish exceptional circumstances, particularly (but not limited to) where the delay is likely to lead to an accused spending more time on remand than the likely sentence.
  • The existence of the current COVID-19 health crisis will not, however, give rise to exceptional circumstances in all cases. The crisis is simply one of the surrounding circumstances that a bail decision maker must take into account in considering an application for bail.
  • The relevance of the COVID-19 crisis is that it may make time in custody very difficult and/or significantly more difficult than usual. Moreover, to the extent that correctional facilities are not permitting visitors, there may be greater isolation for those on remand. Additionally, the extent to which the crisis may impede education and/or rehabilitation opportunities is a matter capable of being relevant and, to that extent, would need to be taken into account.
  • In any individual bail application, in the absence of agreement between the parties, much will depend upon the evidence of the effect of the crisis so far as it concerns the circumstances of the applicant for bail.

Since then, his Honour’s synthesis has been treated as authoritative (see, for example, Thomas v Kitching [2020] VSC 206, [92]).

The introduction of trials by judge alone in Victoria (by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic)) may reduce pandemic-related delays across the justice system, but may not alleviate the effect of unsatisfactory delay leading up to the committal of a particular applicant for bail: Bail application by Che Ashton [2020] VSC 231, [64]-[66].

In Re Broes [2020] VSC 128, the Supreme Court of Victoria was satisfied that “exceptional circumstances” existed, having regard to:
  • delay in the criminal justice system - caused by movement restrictions and the postponement of jury trials - and the possibility of the accused being subject to a lengthy period of remand ([35]-[38]);
  • the risk of the accused being subject to lockdown in prison, if there were an outbreak of COVID-19 within the prison population, and the substantial effects such a lockdown would have on the accused and her relationships with her family ([39]-[40]); and
  • the “overwhelming likelihood” that, if bail were not granted, the accused might spend more time on remand than the period of her sentence, if she were to be found guilty of the offences charged ([41]). 

With respect to the risk of the accused being subject to lockdown in prison, the Court acknowledged that the effects of a COVID-19 outbreak on the prison population would be a matter of speculation, but considered that the urgency of the circumstances warranted such speculation ([39]).

In Re McCann [2020] VSC 138, the Supreme Court of Victoria again found the “exceptional circumstances” test to be satisfied, having regard to:
  • the low chance of the trial being able to proceed in 2020 and that, if the trial ultimately proceeded in February 2021, the accused would have been on remand for more than three years ([39]);
  • the risk of the accused being subject to lockdown in prison, if there were an outbreak of COVID-19, and that this would make his time in custody more difficult ([40]); and
  • that the accused was not receiving necessary medication in prison and the hardship he would experience if left untreated during a lengthy period of delay ([41]).

In Re Tong [2020] VSC 141, the Supreme Court of Victoria held that the circumstances of the pandemic are part of the “surrounding circumstances” required to be taken into account in a consideration of both steps in a two-step bail process: [33]; see also Re JB [2020] VSC 184, [40]; and Re Nicholls [2020] VSC 189, [32]. However, the Court in Re Tong distinguished Re Broes [2020] VSC 128 on several bases, including that the offending in that case had been in the summary stream and was less serious than that before the Court in Re Tong: [31] (although ultimately finding the “exceptional circumstances” test to be satisfied); see also Re El-Refei (No 2) [2020] VSC 164, [17]-[27].

When taking into account a person’s Aboriginality for the purposes of s 3A of the Bail Act 1977 (Vic) and the “exceptional circumstances” test under that Act, it may be relevant that persons of Aboriginal descent have poorer health outcomes than non-Aboriginal persons and may be at greater risk of serious infection from COVID-19: Re Kennedy [2020] VSC 187, [6(4)(b)].

For the purposes of the “exceptional circumstances” test under s 9E of the Bail Act 1992 (ACT), the impact of COVID-19 on parents with young children has been held to be a relevant consideration, where an applicant for bail shares parental child care responsibilities (even where the relevant parents are formally separated): Watson v The Queen [2020] ACTCA 16, [8]-[11].

As Beach JA observed in Re Diab [2020] VSC 196, courts have found that the impact of COVID-19 on prisoners will not, in every case, lead a court to find “exceptional circumstances” exist or otherwise justify a grant of bail: see, e.g., Re Velluto [2020] VSC 188, [25], [34], [47]-[48], [51]; Re Morant [2020] QSC 79; and Re Sepehrnia [2020] VSC 247, [58]-[59]. In Re Nicholls [2020] VSC 189, Incerti J held that delay in the judicial process resulting from COVID-19 “does not, of itself, clear the threshold of exceptional circumstances in every case” (at [35], [39]), but is “just another factor” to be considered (at [35]).  See also Re Diab [2020] VSC 196, [41].

In Re Morant [2020] QSC 79 (delivered on 3 April 2020), the Queensland Supreme Court was not satisfied that the pandemic gave rise to “exceptional circumstances” in the requisite sense, where bail was sought pending the handing down of an appeal decision, which was expected to be delivered within a short time frame. The Court also suggested that a person in custody might be more protected from COVID-19 than a person in the community, because: at that time, no prisoner in a correctional centre in Queensland had been diagnosed with COVID-19; precautionary measures had been implemented in Queensland prisons; and the prison population had been, essentially, isolated from anyone returning from overseas or with flu-like symptoms (see also Re Young [2020] QSC 75).

Further, even where a court is satisfied that “exceptional circumstances” exist by reason of the COVID-19 pandemic, it may still find that an offender poses an “unacceptable risk” to the community (for the purposes of statutory bail tests) in light of the circumstances of their offending and their criminal history: Re Taylor [2020] VSC 146, [52]-[53]. However, it may be a central factor in a court’s consideration of the issue of “unacceptable risk” where, as a result of delays in court processes caused by COVID-19, an offender is likely to spend more time on remand than under a term of imprisonment: Re Guinane [2020] VSC 208, [44].

Conversely, a risk of reoffending may not be “unacceptable”, where an offender is a child and the pandemic would result in their experience of custody being more onerous: Re JB [2020] VSC 184, [51]. Delays in the criminal justice system resulting from COVID-19 may also be particularly significant in an application for bail of a child: Re JK [2020] VSC 160, [21]; see also Re JF [2020] VSC 250, [44], [65]. First, because the effects of physical separation from family while in custody may be particularly acute in the context of young offenders: Re JK [2020] VSC 160, [23]. Secondly, because restrictions on education and training opportunities in response to COVID-19 may be in tension with statutory requirements relating to such opportunities: Re JK [2020] VSC 160, [24]-[26].

COVID-19 is also relevant to the “compelling reason” test under the Victorian scheme. In particular, courts, in deciding whether that test is met, may have regard to delays to trials resulting from courts’ responses to COVID-19 and the more onerous nature of custody resulting from prisons’ responses to COVID-19: Re JB [2020] VSC 184, [40]. Courts may also have regard to the susceptibility of gaols and similar institutions to the rapid spread of COVID-19, uncertainty relating to when cases will be heard and significant anxiety experienced by inmates as a result of those factors: DPP v Walker (a pseudonym) [2020] VCC 447, [36]-[43]. Where restrictions on face-to-face visits are in place, difficulties a prisoner may encounter in interacting with their defence team may also be relevant (although restrictions on visits may not impede preparation of an effective defence, at least where virtual visits are permitted): Bail application by Che Ashton [2020] VSC 231, [62]. However the circumstances of the pandemic do not, alone, satisfy the “compelling reason” test under the Bail Act 1977 (Vic): Bail application by Che Ashton [2020] VSC 231, [58], [67].

New South Wales

In NSW, the pandemic may be relevant to a court’s consideration of various matters under the NSW scheme, including (Rakielbakhour v Director of Public Prosecutions [2020] NSWSC 323, [15]):
  • the need for an applicant to protect themselves from infection and to support their family, if there is evidence to support such a finding (for the purposes of s 18(1)(m) of the Bail Act 2013 (NSW));
  • the length of time a person will remain in custody (for the purposes of s 18(1)(h) of the Bail Act 2013 (NSW)), which may be affected by the measures courts take to ensure that participants in litigation are safe;
  • the need for the accused to prepare for their appearance in court or obtain legal advice (for the purposes of s 18(1)(l) of the Bail Act 2013 (NSW)), which may be affected by the limited availability of audio-visual facilities in prisons during the pandemic; and
  • any special vulnerability of an accused (for the purposes of s 18(1)(k) of the Bail Act 2013 (NSW)), which may be particularly relevant in the context of an accused who is an Aboriginal or Torres Strait Islander.

In some cases, the pandemic may give rise to questions relevant to determining whether an applicant has shown cause why their detention is not justified, for the purposes of ss 16A-16B of the Bail Act 2013 (NSW): Rakielbakhour v Director of Public Prosecutions [2020] NSWSC 323, [19].

South Australia

In the absence of evidence concerning the conditions in a particular prison, South Australian courts may place little weight on the potential impact of prison authorities’ responses to COVID-19 on the burden of imprisonment: Lillyman v The Queen [2020] SASC 55, [17]. Nevertheless, under the South Australian bail scheme, an actual outbreak in a prison may be a reason for reconsidering a decision not to grant bail: Lillyman v The Queen [2020] SASC 55, [17]. As might delays in the hearing and determination of a charge of such a length that would mean an accused may have to spend, on remand, a period approaching the sentence that might be served upon conviction: Lillyman v The Queen [2020] SASC 55, [17]. Although prisons are not necessarily premises with a higher COVID-19 risk than other premises (they may even be safer), if a prisoner were to contract COVID-19, the conditions in prisons are such that rapid infection of other prisoners would be likely: Lillyman v The Queen [2020] SASC 55, [16]. See also Rowson v Department of Justice and Community Safety [2020] VSC 236, [10], [30], [33], [44], [68], [100] (albeit with no facts being affirmatively found, on an interlocutory application).

Applications for bail where previously refused

Courts have also considered the relevance of COVID-19 to an application for bail, where bail has been previously refused.

Curtailment of prisoners’ visiting rights may amount to a “change of circumstances” for the purposes of s 20C of the Bail Act 1992 (ACT), enabling a court to be satisfied that a person should be permitted to make a further application for bail after an earlier refusal: Re Stott (No 2) [2020] ACTSC 62, [10], [13]-[14]. That is because persons on remand rely on limited social contact, most of which is achieved through prison visits: Re Stott (No 2) [2020] ACTSC 62, [13].

Delays in the justice system caused by COVID-19 may also satisfy the requirement of “new facts or circumstances” for the purposes of further applications for bail under s 18 of the Bail Act 1977 (Vic): Re El-Refei (No 2) [2020] VSC 164, [4]-[5]. Similarly, such delay may, on its own, constitute a “material change in circumstances” for the purposes of a further application for bail under the Queensland scheme: Lynch v Director of Public Prosecutions (No 2) [2020] QSC 64, [27]. It may also be taken into account in determining whether an applicant’s detention is “not justified” for the purposes of that scheme ([39]).

The South Australian Supreme Court has also held that the impact of COVID-19 restrictions on a person may constitute changed circumstances for the purposes of a further application for bail under the South Australian scheme: Butler v The Queen [2020] SASC 74, [17].

COVID-19 may also require variation of bail conditions.  In Queensland, for example, there are standard conditions now required for bail during the current crisis: see Re CLA [2020] QSC 85, [51].
​
As courts have emphasised when considering COVID-19 in a sentencing context (see the Sentencing section of this text), the dynamic nature of the pandemic requires a court considering the pandemic in the context of bail to assess, as best it can at the time of an application, the possible consequences of the pandemic for a particular person: Bail application by Che Ashton [2020] VSC 231, [63]. A court is likely to be reluctant to form a view on the risk to the prison population arising from COVID-19 in the absence of evidence on the question: see, e.g., Bail application by Che Ashton [2020] VSC 231, [63].

Variation of bail conditions

In R v Davis [2020] NSWSC 472, Wright J refused an application for variation of a bail condition requiring the applicant to report to police. The applicant’s mother — with whom he lived — was 63 years old, and had emphysema and asthma and an enlargement of the right heart ventricle, including specifically chronic obstructive pulmonary disease. Those factors placed her at greater risk if she contracted COVID-19. The applicant contended that regularly reporting to the Katoomba police station would put his mother (who was strictly self-isolating) at risk, because he would be required to regularly go out into an uncontrolled environment and then return to the house.

On the basis of information about the Katoomba Police Station, the incidence of COVID-19 in the Blue Mountains region, and the governmental measures in place to minimise the further spread of the virus in the community, the Court did not accept that the risk of infection of the applicant, the co-accused or the community generally would be such as to justify removing the reporting condition. The Court then held that the proposed variation was not necessary or appropriate in order to minimise the risk posed to the applicant’s mother or others as a result of the COVID-19 pandemic.

The uncertain course of the COVID-19 pandemic internationally was held to weigh against an application to vary bail conditions to permit overseas travel in