Bail is a promise to attend court while you are waiting for a charge to be dealt with by the courts, instead of being held behind bars on remand.
For less serious charges the promise may be enough and bail may even be dispensed with altogether, but for more serious charges where gaol is a real possibility this promise may need to be backed up by conditions, such reporting regularly to a police station, surrendering your passport, or the court holding an amount of money until the end of your matter.
If the police consider you a risk while out on bail and refuse it to you when arrested, you can apply for bail to be reviewed by the court.
You should always have an experienced criminal defence lawyer for this as there are a number legal complications to work around and creative avenues that may not be apparent.
The Bail Act
Section 18 of the Bail Act 2013 lists the factors that may be taken into account when determining whether bail will be granted, and while disease is not a factor in its own right, the risk of coronavirus (Covid-19) to yourself and/or others can be relevant to these general factors.
Subsection 18(1)(a) draws the court's attention to your personal circumstances, to which your potential exposure to coronavirus would be a relevant factor. The potential for infection is specifically relevant to your health and treatment, as well as the health of other inmates and corrective services staff.
In that regard, NSW Health's FAQ website on coronavirus states, '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'.
Although correctional centres have some medical treatment facilities, they certainly do not have ICU-level care. The risk posed to a bail applicant and others by someone exposed to the virus is a factor that can be taken into account by a court.
Section 18(1)(h) of the Act requires the court to take into consideration the length of time you will likely be in custody before your matter is resolved.
In these uncertain times, any coronavirus-related delay could be . Just today (30 March 2020) Justice Price AM, Chief Judge of the District Court of NSW announced that new Judge alone trials, sentence hearings, Local Court Appeals, arraignments and readiness hearings – that is, effectively any court date other than a mention – where the defendant is not in custody have been suspended. While those in custody are still having all but new jury Trials, this is still but one step away from the courts shutting down completely and still leading to significant delays for those in custody. This indeterminate delay leading to a greater length of time on remand is a significant factor that courts must consider when assessing your bail application.
Section 18(1)(k) of the Act requires a court to consider any special vulnerability or needs you may have.
Special vulnerability is particularly relevant to those for whom the coronavirus poses a greater danger, which includes those grouped together in confined spaces and especially:
- people with compromised immune systems
- people with diagnosed chronic medical conditions
- elderly people
- Aboriginal and Torres Strait Islander people, as they have higher rates of chronic illness
A special vulnerability to coronavirus would apply if you have a pre-existing illness or poor immune system, e.g. if you have cancer, HIV or a respiratory illness, though could also extend to include health issues from drug or alcohol addiction.
A strong argument can be made that you would be at a much greater health risk in gaol. The same applies if you are an Aboriginal or Torres Strait Islander.
ATSI people have long been recognised as being more at risk from these sorts of illnesses than the wider Australian population, so this is of clear relevance to you when making a bail application.
Finally, older people are recognised as being especially vulnerable to coronavirus, so a court will need to take into account the added health risk to you when determining whether it is appropriate whether you should be set at liberty or stay in custody.
Section 19 of the Act sets out the circumstances in which you may be considered an 'unacceptable risk', including a risk of failing to appear in court on the next occasion.
The current domestic and international travel bans that are in place may be relevant when determining your bail if you are considered a flight risk. The self-isolation may also be of relevance in a number of matters, but this could cut both ways, as the section also states that you may be an unacceptable risk if the court thinks you would commit a serious offence or endanger the safety of victims, individuals or the community.
For matters involving domestic or personal violence, spending significant amounts of time in proximity of the complainant would be of real concern to a court considering bail.
In these cases, concerns for the complainant would need to be addressed through conditions. In contrast however, other bail concerns might be lessened by self-isolation and other restrictions, for instance if attending a pub or bar was of particular concern these are not open through the restrictions.
So with all this in mind, your personal background circumstances, as well as any risks of granting you bail must be carefully considered in light of coronavirus infection and the quarantine restrictions that are in place.
These are the main ways that the coronavirus pandemic could affect your bail application, but there may be others that apply to your particular situation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.