COVID-19 and Bail Applications 

man behind bars 

Covid-19 has changed a number of things about our daily lives. This includes how the criminal justice system is dealing with matters such as applications for bail.  Covid-19 is, in some circumstances, a relevant consideration for the court in deciding whether to grant bail. It is being raised in a number of different ways by defence counsel as a factor which can influence the court’s decision.  

What do courts ordinarily consider?

The Bail Act 1982 (WA) governs the things that the courts look at when deciding whether or not to grant bail. Ordinarily, after the court has considered the questions in Schedule 1 Part C, clause 1 of the Act, the court will grant bail unless it is satisfied that an accused should be kept in custody.

This section of the act asks a number of things, including:

  • How strong the Prosecution case is;
  • Whether the alleged offence is too serious for bail to be appropriate;
  • How long any possible prison sentence might be;
  • Whether the accused’s criminal history, or a history of breaching their bail conditions;
  • Whether or not an accused is a flight risk;
  • Whether or not the accused is a danger to themselves or others; and
  • What the effect of not being granted bail might be on the accused’s business, children or family.

How does Covid-19 affect the court’s considerations?

There are two main reasons that Covid-19 may result in bail being granted – Vulnerability and Delay.

  • Vulnerability – particular vulnerabilities  that an accused person has by being in custody might be amplified by Covid-19 – and this is  important to any potential bail application. Examples include being asthmatic, immunocompromised, having cognitive or mental health impairments, having a diagnosed chronic medical condition, or being pregnant. Examples also include groups within our community such as Aboriginal or Torres Strait Islander people and the elderly.
  • Delay – courts in WA are required take into consideration the length of time you will likely be in custody before your matter is resolved. WA courts are not currently holding jury trials, and many other court hearings and procedures are being postponed to reduce the risk of Covid-19 transmission. This is already leading to increased delays of more than one year – which is a very long time to be in custody for an accused person on remand.

Covid-related considerations must still be balanced against all other considerations.

Recent bail applications in the context of Covid-19

Recently in a case in Victoria the possibility of significant delays in the justice process due to Covid-19 were considered to be ‘extraordinary’. In that case  bail was granted after a judge considered the substantial effects that being in custody would have on the applicant’s relationship with her family. The applicant was also likely to spend longer in custody, without bail, than she would if she was found guilty and sentenced.

Recently in Queensland, an applicant was granted bail after the judge accepted that there were difficulties with the prosecution’s case against the defendant and the suggestion that Covid-19 would result in significant delays in finalising the proceedings.

In another recent Queensland case an applicant was denied bail despite Covid-19 causing delays in finalising matters. The judge considered the Covid-related delays as a ‘material change of circumstances’ – however also considered that substantial delay, alone, was not enough to grant bail. In this case there was a strong prosecution case, the applicant had a significant criminal history and there was potential for a long prison sentence if convicted. The judge considered that these things outweighed the delays caused by Covid-19, and refused bail.

What this all means is that bail applications in the context of Covid-19 should be made with particular attention to any delays of trial dates, the health risks of an accused in custody waiting for trial, as well as the strength of the prosecution’s case.

Recently, Andrew Williams Barrister and Solicitor had a client who was released on bail after a lengthy remand period because there were  lengthy delays in the court process due to Covid-19, in addition to uncertainty about the status of the prosecution’s case and whether it was in a position to proceed.

Andrew Williams is an experienced criminal lawyer in bail applications. If you or one of your loved ones want to make an application for bail during Covid-19 times, contact the Law Offices of Andrew Williams on (08) 9278 2575 or  enquire online today. 

Andrew Williams Barrister and Solicitor remains open during these changing times and is ready to assist those in need of criminal legal advice and assistance. 


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