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Changing circumstances for bail: COVID-19

Yesterday, the Supreme Court heard its first case on the impact of COVID-19 on prisoners in NSW. For individuals awaiting their hearing or trial, the current health crisis may...

Justin Wong

Yesterday, the Supreme Court heard its first case on the impact of COVID-19 on prisoners in NSW.

For individuals awaiting their hearing or trial, the current health crisis may have changed their circumstances for bail.

Some of these considerations include:

1. Delay

Under the Bail Act 2013, a magistrate or judge may take into account the length of time a person is expected to be in custody if refused bail. A relevant consideration is the increased time a person may spend in custody if their defended hearing has, or is likely to be, suspended as a result of COVID-19.

2. Vulnerability to Transmission

The court can also take into account whether a person is particularly vulnerable when in custody. The prison environment can present a greater risk to be exposed to other persons in close proximity. This can significantly affect individuals with health concerns, older prisoners and Aboriginal and Torres Strait Islanders.

3. Flight-risk

A primary concern for the court is whether the accused is likely to appear before the court as they are required. If the person appears to be a flight-risk this can significantly affect their release application. With the current rules regarding interstate and international travel, however, this risk is considerably mitigated.

4. Serious Offence

For certain serious offences, it is up to the accused person to show reasons why their detention is not justified. Factors such as health concerns and significant delay can in some circumstances, ‘show cause’ as to why detention would be unjustified.

For more details, read our blog on ‘show cause’ offences from earlier this year.

5. Making an Additional Application for Bail

If the current situation has changed the circumstances for an individual in custody, it may allow them to make an application to be released, even if they have already applied before.

Applying for bail can be a complicated process in normal circumstances. Given the recent changes to law and procedure, it is even more important to seek legal advice to put forward a strong application for release. If you or someone you know could be affected by these changes, please contact one of our criminal lawyers on 9025 9888.