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CriminalApril 12, 2020

Bail in the Covid-19 era

Criminal law in the COVID-19 era has experienced rapid changes and the jurisdiction
surrounding Bail is no exception. At Frichot Lawyers, we want to keep you informed
about how these changes could impact Bail arrangements for you, or your family and

What does the Court generally consider in Bail applications?

The jurisdiction to grant bail is to be exercised subject to, and in accordance with, pt 3 of the Act and the provisions in pt B, C and D of sch 1 to the Bail Act 1982 (WA).

Part C of sch 1 of the Act outlines the principles governing the grant or refusal of bail. This gives the Court discretion, having regard to the following questions, as well as any other matters which they consider relevant:

  1.  Whether the applicant may fail to appear in court in accordance with a bail undertaking;
  2. Whether the applicant may commit an offence if released on bail;
  3.  Whether the applicant may endanger the safety, welfare or property of any person;
  4.  Whether the applicant may interfere with witnesses or otherwise obstruct the course of justice;
  5. Whether the prosecution has put forward grounds for opposing the grant of bail; and
  6. Whether there are any conditions which could reasonably be imposed which would remove the risks referred to.
I have been impacted by COVID-19, what can the Court take into consideration?

All the usual considerations apply but COVID-19 may be relevant to a Bail applications in the following ways:

  • The accused’s circumstances (i.e. whether they have beenexposed to COVID-19), family connections (i.e whether they are a primary carer of children);
  • Length of time in custody (particularly if the person has a special vulnerability and/or there is to be a delay in any trial, see below);
  • The likelihood of a custodial sentence being imposed ifthe accused person is convicted of the offence;
  • Any special vulnerability or needs the accused person hasincluding because of youth, being an Aboriginal or Torres Strait Islander,or having a cognitive or mental health impairment.

There are broad principles and established evidence that the court can find persuasive in
supporting the need to change Bail arrangements, during the COVID-19 era.The following evidence is relevant:

  1. As a broad principle, it is well-established that the spread of disease, including respiratory diseases, is higher in prison. For instance, the World Health Organisation noted the rate of tuberculosis in prisons in the Europe in 2002 was 84 times higher than in the general population.
  2. It is also well established that Aboriginal and Torres Strait Islander people suffer disproportionately from diseases of the respiratory system, particularly pneumonia.

On 15 March 2020, the World Health Organisation (WHO) produced an interim guidance paper: “Preparedness, prevention and control of COVID-19 in prisons and other places of detention”. Some critical points which arise from that highlight the increased risk in detention centres, due to COVID-19, which will be further explained below.

What are the risks that arise from COVID-19 for our criminal justice system?

According to the interim guidance paper produced by WHO, being deprived of liberty implies that people in prisons and other places of detention live in close proximity with one another, which is likely to result in a heightened risk of person-to-person and droplet
transmission of pathogens like COVID-19.

People in prisons typically have a greater underlying burden of disease and worse health conditions than the general population, and frequently face greater exposure to risks such as smoking, poor hygiene and weak immune defence due to stress, poor nutrition, or prevalence of coexisting diseases, such as bloodborne viruses, tuberculosis and drug use disorders;

The WHO recommends that “Enhanced consideration should be given to resorting to non-custodial measures at all stages of the administration of criminal justice, including at the pre-trial, trial and sentencing as well as post-sentencing stages.”

Priority should be given to non-custodial measures for alleged offenders and prisoners with low-risk profiles and caring responsibilities, with preference given to “pregnant women and women with dependent children”. The paper also recommends “refined allocation procedures should be considered that would allow prisoners at highest risk to be separated from others in the most effective and least disruptive manner possible and that would permit limited single accommodation to remain available to the most vulnerable”.

Given that the Court can takes into account some factors of special vulnerability, what can we learn from other states about the impact of COVID-19 on ‘high risk’ members of the population?
As at 30 March 2020, NSW Health stated the following:

Coronaviruses (including COVID -19) are spread from someone infected with COVID-19 virus to other close contacts with that person through contaminated droplets spread by coughing or sneezing, or by contact with contaminated hands, surfaces or objects.

Ways to prevent COVID-19 transmission include avoiding close contact with people who display flu-like symptoms, to maintain a distance of 1.5 metres from others as much as possible and to avoid crowded places.

The following people are most at risk of COVID-19 infection:

  • people with compromised immune systems (e.g. cancer)
  • people with diagnosed chronic medical conditions
  • elderly people
  • Aboriginal and Torres Strait Islander people, as they have higher rates of chronic illness
  • very young children and babies

It is important to remember that even healthy young adults can have severe
disease caused by COVID-19.

People living in group residential settings are at greater risk of being exposed to outbreaks of COVID-19 if a case is diagnosed in a resident or staff member. This includes:

  • people living in residential aged care facilities and disability group homes
  • people in detention facilities
  • people in detention facilities
  • people living in some group residential settings are also more likely to have conditions that make them at greater risk of serious COVID-19 infection.

Given that the Court can consider caring relationships in granting Bail, what do we know about medical opinions that could help families?

The Royal Australian and New Zealand College of Obstetricians and Gynaecologists (RANZCOG), the peak body for obstetrics and gynaecology and women’s health in Australia and New Zealand, considers that pregnant women should be considered a vulnerable or at-risk group of becoming infected with COVID-19. During pregnancy, changes to a woman’s body include reduced lung function, increased cardiac output, increased oxygen consumption, and changes tothe immune system. Due to these changes, pregnant women have an increased riskof severe complications from influenza. While information regarding the impactof COVID-19 infection on pregnant women and their babies is limited by therecency of the disease emergence, RANZCOG’s pregnancy advice is based on learnings from influenza infection, and also the medical response to the SARS epidemic in 2003.

So, how does this relate to my Bail application?

The increasing presence of COVID 19 in the Australian community is relevant to the Bail Act. The bail authority is to consider whether anyeventual sentence is likely to be custodial or non-custodial, taking account of factors such as special circumstances as well as the full range of subjective considerations. In current situation this includes whether the accused:

  • Fits within a high risk category;
  • Whether the person has family or other caring relationships for other vulnerable people such as children.

More generally, consideration should be given to the applicability of the above official Government information if the accused suffers from a ‘special vulnerability’ in that they fall within one of the high-risk categories. Attention should also be given to the impact of compromised immunity that may arise from an accused’s drug and/or alcohol issues, although they do not explicitly fall into a high-riskcategory. Thirdly, consideration should be given to whether extended periods of isolation in custody or lockdown will exacerbate symptoms of mental illness.

Finally, where an accused person has had a prior release on bail application that wasunsuccessful, and falls within a high risk category (particularly an Aboriginal client), the increasing presence of COVID-19 in the Australian communitywould form a basis for a further release application.

What happens if my trial is delayed?

Where the trial date may be delayed, a longer period in custody waiting for trial. Delay is a relevant consideration in a bail application.

Where a person is in custody awaiting trial, a significant delay before coming to trial may be equivalent to, or represent a significant proportion of the non parole period of any sentence imposed. Bail cannot be imposed as a pre-emptive punishment nor can it be used to protect the community if the length of time that the accused would be remanded in custody is likely to exceed any punishment imposed on conviction.

In a recent decision in Victoria dealing with our equivalent of Schedule 2 of the Bail Act which requires exceptional reasons to grant bail where an accused on bail for a serious offence is charged with another serious offence, delay in coming to trial due to trial listings being delayed by Covid-19 concerns were significant in the question of whether there were exceptional reasons for bail to be granted.

The Court found that, given the extraordinary circumstances in which we now find ourselves, their honours came to the conclusion that an already significant delay will be likely exacerbated by the consequences of COVID-19, and they were therefore satisfied that exceptional circumstances have been established.

Bail applications in the current Covid-19 environment should be made with particular attention paid to the delay in coming to trial and the health risks to an accused who is remanded in custody awaiting trial.

Whatever your concerns or needs are relating to a Bail application, rest assured, Frichot Lawyers have extensive experience in this area of law and are available to discuss your questions in an Introductory Consultation. Please do not hesitate to contact us on 9335 9877 or request an appointment below.


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