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.
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.
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.
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.
Re Ceylan  VSC 361
Re Broes  VSC 128
Re Scott (No 2)  ACTSC 62