News - COVID-19: Can it be raised in bail applications?

On 23 March 2020, the Supreme Court of the Australian Capital Territory decided the matter of R v Stott (No 2) [2020] ACTSC 62.

Ms Stott had applied for bail.  In order to succeed it was necessary for her to show a change in circumstances since her last application approximately two months prior.

Ms Stott submitted that the change of circumstances was the impact of COVID-19.

The impacts she relied upon were:

(1)    In prison she is more susceptible to contracting the virus;

(2)    The limited social activity which she is able to carry on in the prison has been curtailed; and

(3)    Interference with court processes might delay her trial and cause her to remain in custody for a longer period.

In relation to (3), the court was not convinced.  This was because Ms Stott had elected to have a judge alone trial, and therefore, there was no reason to anticipate that her trial would not proceed.

The position would certainly be different in relation to people who have only just been charged and who face a longer than usual summary hearing or committal process, and people who have been waiting for jury trials which have now been vacated.  Even people who intend to plead guilty might be in danger of spending inordinate lengths of time in custody.

In relation to (1), Ms Stott was able to tender a notice which had been issued to visitors of the prison.  It said that no further visits would be permitted.  It said that the purpose of this was to limited the risk of infection to detainees, visitors and staff.  With this in mind, the court said:

Clearly the Commissioner of ACT Corrective Services is concerned, in the overcrowded circumstances currently existing at the [prison], that staff and inmates will be at serious risk of contagion if the virus finds its way into the facility.

Ms Stott also tendered an open letter to the assorted Australian governments from legal academics and lawyers which called upon the governments to take urgent steps to address the issue of the virus propagating in prisons.

Still, the court did not think that the evidence presently available enabled the court to say that a person in custody was more likely to contract the virus than if that person was living in the community.

This is difficult to accept.  There is a lot of traffic and churn through prisons.  Living conditions are tight, and “social distancing” would be inherently difficult.  Hygiene and sanitation are certainly not the best.  This would, it is suggested, all conspire to make prisons extremely fertile ground for the rapid spread of the virus.

The court was, however, swayed in relation to (2).  The curtailment of visiting rights was found to amount to a change of circumstances.  The court acknowledged that people on remand rely on the limited social contact that they are permitted by way of visits.  The court acknowledged that Ms Stott was frequently visited by her children, and that was an important element of her life in the prison.  The fact that visits were no longer being permitted meant that the court could proceed with the bail application.

In Queensland, the same restrictions are being implemented.  Prisoners are now no longer permitted to receive visitors, and apparently activities that prisoners rely upon to while away time have been curtailed.

Prisons being likely flashpoints for the virus, the current curtailment of social activities and visits, and delays in court processes are all matters that should be born in mind when making bail applications at the moment. 

Written by Michael Finch, Senior Associate, Criminal Law Division