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How Does The COVID-19 Crisis Impact Your Bail Application?

No area of life has been untouched by the spread of COVID-19. In light of the growing pandemic, Victorian courts are being far more considerate when it comes to bail. Prisons are very closed and very crowded environments, much like the cruise ships that brought so many cases to our shores; perfect conditions for a disease like COVID-19 to take hold and spread. Social distancing is practically impossible.

In several Australian jurisdictions, including Victoria, judges have decided to grant bail to persons who, in other circumstances, would very likely have their applications denied.

What makes COVID-19 exceptional?

A number of reforms and changes have been made in response to the dramatic and unprecedented threat posed by COVID-19, and the need to keep our justice system responsive to the social challenges it poses.

Victorian bail law states that people charged with serious offences or those who have breached bail or other court orders must demonstrate ‘compelling reasons’ or ‘exceptional circumstances’ to be considered for release. Judges and magistrates are required to consider a range of issues in deciding ball application matters, and it’s becoming apparent that this may not include whether the applicant is in a high-risk category, such as susceptibility to COVID-19, and will have limited contact with family and friends caused by new restrictions on visits.

In recent cases before Victorian courts, in making their decision to grant bail applications, Judges have already referred to the impact of COVID-19 on the community as “novel circumstances” never before encountered in living memory. Though itself not enough to establish the ‘exceptional circumstances’ requirement needed before bail is granted, it shows how judges are now factoring in the pandemic within the ‘surrounding circumstances’ that can affect bail decisions.

Other factors the court will take into account are whether the applicant has a place to stay, whether they have a criminal record, if they are part of a group vulnerable to COVID-19 (such as asthma or diabetes), or are on remand and yet to be sentenced.

Outside contact is a right.

In addition to the physical health of bail applicants posed by COVID-19, courts are also taking into account the mental well-being of persons held in remand, and the restrictions on visitations currently in place.

In the ACT Supreme court, it was successfully argued that these restrictions unacceptably limited the applicants contact with family and friends. The judge said:

Persons on remand no doubt rely on the limited social contact they are permitted, most of which is achieved through visits. In particular, contact with family is an important element in the life of a person resident at the [ACT prison].

This position was also adopted by the Supreme Court of Victoria when granting bail, citing the possibilities of significant delays in the justice process caused by COVID-19,

Which would have substantial effects on her and, no doubt, her relationship with her family, [and] which would be a dramatic development for a person who had not previously been in custody.

Helping a loved one who’s inside.

It goes without saying that prisons are the perfect breeding ground for COVID-19. This leaves many people, with loved-ones currently serving sentences in Victorian prisons, desperately concerned about their welfare.

There is no doubt that the current pandemic is unlike anything seen in our lifetime. These circumstances have brought about enormous changes to society, and the criminal justice system is not immune. Many in the community are calling for the immediate release of nonviolent prisoners and those particularly susceptible. This includes persons over 50 years of age, those currently suffering diabetes or asthma, and those with outside family commitments.

If you have a loved-one currently serving a sentence in a Victorian corrections facility, we strongly encourage you to contact us to speak with our criminal law experts about lodging a bail application.

Bail Applications and COVID 19 – Summary

  • COVID-19 pandemic has caused significant changes to what is considered by courts deciding bail applications.
  • Much like cruise ships, prisons are the perfect breeding ground for a virus like COVID-19.
  • Courts taking into account the impact on well-being and restrictions on visitation rights.
  • Community pressure for courts to approve bail for persons serving sentences for non-violent crimes and those susceptible to catching COVID-19.

References:

Re Ceylan [2018] VSC 361

Re Broes [2020] VSC 128

Re Scott (No 2) [2020] ACTSC 62

Family Violence in Australia is now recognised under federal legislation.

This means offences or allegations are investigated and prosecuted under one single set of laws. The same rules that apply to Victoria also apply to the other states and territories. A federal change such as this carries a positive effect in that an individual is judged the same as if they were charged anywhere in Australia. Since the royal commission into family violence, 227 submissions were made which tightened up the laws and increased penalties for all offences that fall within this legislation. The primary difference today is that when a complaint is made by a party to family violence, the Police become the applicant of Family Violence Orders, not the person who made the initial complaint. This usually means the ability to have an order withdrawn is significantly lower in nearly all cases meaning the intervention goes full steam ahead. Its the Australian Governments way of putting a clear barrier between feuding couples and domestic partners and relatives so that orders can be enforced in full without the full consent of the protected person.

Let’s use this Case Study as an example;

John and Sally have been married for 5 years and have 1 child together. They live together in the suburbs of Melbourne. One night, John is overheard screaming rather loudly and using words to the effect that cause a neighbour to believe Sally may be at risk of being assaulted physically. The neighbour then calls the police and informs them of what they have over heard coming from John and Sally’s house. Police then attend the address and knock on the door. By this stage, the fight has subsided and everything is quiet at John and Sally’s home. The Police interview both of them and each tell their story about the argument and what preceded in terms of their verbal argument. John explains he has never hit Sally before to which Sally confirms; although Sally states at times when John raises his voice that way she does fear for her personal safety. On hearing this, the Police lodge and application for a Family Violence Order which is to be determined by a Magistrate. They state that John is the respondent and Sally is the AFM (affected family member). The order gets an interim status and John is now unable to communicate, be in proximity of, damage property or digital slander Sally until a Court has heard more details of their personal circumstances and determinations of whether they believe Sally to be at risk

This is a regular scenario where the Police act as the applicant on an order as their initial interference or investigation then places them on a duty of care to the alleged victim, in this case Sally. Regardless of Sally’s consent or push for Police inviol;vement, it’s happening regardless. The laws now give Police administrative power to apply and lodge orders on behalf of non consenting members of the community if they believe reasonably that harm may arise without intervention. A very subjective and discretionary power to exercise. Family Violence Orders now litter our courts with hearings day by day in Australia with people fighting to either get away from someone or stay connected to them.

The catch net is the term’ family violence’ which can mean physical harm along with psychological harm and verbal or denigrating behaviour. Even economic abuse can be deemed family violence as per the act. For more information if you or a family member has been affected by a Family Violence Order get in touch with us today and we can help steer you through the complex federal legislation which at times, does not serve all the interest of the parties involved. Although the purpose of such legislation was intended to curb violence happening in domestic relationships, at times the law inhibits people from their own sense of liberty and utility.

Spent Convictions: Where Do You Stand?

In February last year, Fiona Patten MP introduced a bill before the Victorian Legislative Council to end Victoria’s status as the only Australian state without a legislated mechanism in place for dealing with spent convictions. According to the Rehabilitation of Offenders Act 1974, a spent conviction is a conviction which can be effectively ignored after a specified length of time passes and conditional upon the individual having no further convictions.

In states where laws have been passed creating a framework for spent convictions (that being all but Victoria), when a person who has committed an offence does not incur any new convictions for the period of time set out in those laws, the record of that conviction is expunged and subject to strict disclosure provisions. In practice, this means the slate is wiped clean, particularly with respect to individuals or organisations seeking information about an individual’s criminal history.

The scheme introduced in the bill proposed far-reaching changes including:

  • Findings of guilt for adults who received a sentence of 6 months imprisonment or less would not appear on criminal records after 5 years for summary offences and 10 years for indictable offences if they did not reoffend in that time.
  • Findings of guilt for children at the time of sentencing would be removed after 3 years if they did not offend in that time.
  • Anyone found guilty of a minor offence where the court ordered a dismissal of the charge would have the finding of guilt removed that day.

Despite garnering the widespread public and legal community support, the Spent Convictions Bill did not pass into law. While it did rekindle debate about the necessity for legislative reform in this area, including the formation of a parliamentary inquiry, Victoria remains the only state without a spent convictions scheme enshrined in law.

What Happens Here in Victoria?

Whereas every other state has laws covering spent convictions, in Victoria, the manner in which records are dealt with is governed by the Victorian Police’s information release policy. The policy recommends that information about previous offences should not be released after 10 years for adults and five years for minors.

The significant difference in this approach is that where legislation provides clear and impartial mechanisms for dealing with conviction records, Victorian Police policy is decided on a case-by-case basis as interpreted by the officer exercising their authority at the time a request for information is made.

Furthermore, while on one hand the policy suggests restricting the release of information older than 10 years, it paradoxically provides for that information to be released for things like applications for IVF treatment, registration for teaching and medical professions, and even for people seeking a bus driver license. Again, whether information is released remains in the hands of Victorian Police personnel.

Ending Stigma and Uncertainty

When Queensland became the first state to enact legislation providing a legal framework for spent convictions, the then Attorney-General Neville Harper said it would remove “the blemish of a criminal record, which places in jeopardy future prospects for full participation in the life of the community”. It is no exaggeration that thousands of Victorians live with the ongoing stigma of possessing a criminal record after a single event, often minor, most likely committed in their youth. It can profoundly influence their outlook on life, their willingness to pursue careers, apply for jobs, make housing choices, and even dare to dream of travel.

It is particularly in the area of employment where the specter of a previous conviction looms large. Increasingly, employers require job applicants to undergo criminal history checks, which in Victoria, may result in the disclosure of offences that occurred decades in the past. And, due to the ambiguities and opacity of existing policies, an individual can never know for sure if that will occur.

The notion that once time is served, the retributive aims of the law have been achieved, is an old one. Yet, in the absence of a legislative scheme ensure certain spent convictions are removed under the right circumstances, Victorians may be forced to pay continually throughout their lives.

Spent Convictions in Victoria – Summary

  • Victoria is the only state without a law governing spent convictions and currently, Victoria policy controls which past convictions are disclosed
  • The guidelines are unclear and criminal records older than 10 years can be revealed to persons and organisation requesting a criminal history check
  • New legislation detailing a progressive spent convictions framework was introduced last year but did not pass into law
  • Parliament launched an inquiry to continue discussion and debate about possible changes to how Victoria handles spent convictions
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