CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Bail Application - s 20C Bail Act 2002 (ACT) - change of circumstances - adherence to stringent conditions - outbreak of infectious disease

Bail Act 1992 (ACT) s 20C

The publication of these reasons is restricted to those reasons set out from [1] - [14] inclusive. The whole of the reasons will be published after the trial of the applicant.

1. This is an application for bail made pursuant to s 20C of the Bail Act 1992 (ACT). In order to succeed the applicant must show that there has been a change of circumstances since her last application, which was made on 31 January 2020.

2. The change of circumstances asserted here is the impact of the coronavirus, in particular COVID-19.

3. The applicant says that the virus primarily impacts upon her in two ways: Firstly, whilst in prison, she is more susceptible to contracting the virus, and, secondly, the limited social activity which she is able to carry on in the prison has been curtailed.

4. As a secondary concern the applicant says that the interference to the court processes that have been, and no doubt will be, a result of the pandemic will cause her trial to be delayed so that she will remain in custody for a longer period before trial.

5. The latter point can be dealt with shortly: The applicant has elected for a judge alone trial which has been given a hearing date of 25 May 2020. Unlike jury trials, there is no reason yet, to anticipate that her trial will not proceed.

6. As a general statement, there can be no doubt that COVID-19 has brought about a massive change of circumstances to society and in particular the way society goes about its ordinary daily life.

7. The question here however is whether or not the change of circumstances personally impacts upon the applicant. This raises two questions:

(a) Is the applicant more likely to contract the virus in custody, than in the open community?

(b) What is the effect of the virus on the limited social activities available to the applicant whilst in custody?

8. The matter originally came before me last week when the Crown sought some time to investigate the likelihood of the virus being more easily contracted in the AMC. The Crown did not, today, provide any further information on this topic. However, the Crown pointed out that the onus in this application is on the applicant and it is for her to demonstrate a heightened susceptibility.

9. The applicant tendered two documents in support of her case. The first is a notice issued to visitors of inmates currently residing at the AMC telling them that as of 22 March 2020 no further visits to inmates will be permitted. The notice is relevant to both of the questions posed in [7], above. Firstly, it states that the purpose of the action is to limit "the risk of infection to detainees, visitors and staff". Clearly the Commissioner of ACT Corrective Services is concerned, in the overcrowded circumstances currently existing at the AMC, that staff and inmates will be at serious risk of contagion if the virus finds its way into the facility.

10. Secondly, the ban on visitors has a direct consequence on the social contact previously allowed to inmates. I was informed, without objection, that the applicant has been frequently visited by her children.

11. The second document is an open letter to the assorted Australian governments from, as a general description, legal academics and lawyers, calling on the governments to take urgent steps to address issues of the virus in prisons.

12. Returning again to the above questions, I do not think the evidence presently available enables me to say that a person in custody at the AMC is more likely to contract the virus than if that person was living in the community. The applicant's counsel referred to the AMC as a cruise ship, no doubt because of events that have taken place on cruise ships around the world. Other than the presence of a number of people in a confined space, I can see no other similarity between the AMC and a cruise ship.

13. As far as the second question is concerned, I think the curtailment of visiting rights is a relevant factor and, personal to the applicant, does amount to a change of circumstances. 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 AMC.

14. The change of circumstances which I have found, enables me to proceed with the bail application. The Crown opposes bail and has raised a number of significant factors in support of its position. Less there be any doubt the only relevance in this matter of the COVID-19 outbreak is to whether or not there has been a change of circumstances. The balance of the bail application does not take into account the outbreak.

15. The Crown pointed to the applicant's lengthy criminal history, the similarity of the alleged offence to a crime she committed in 2009, the safety of a principal witness in the case (who lives about 500 metres from the applicant's residence), the applicant's criminal peer group, in particular members of an outlaw motorcycle gang, and her persistent involvement with violence and illegal drugs. Another matter referred to by the Crown, is that when the applicant's vehicle was searched outside the scene of the alleged offence, a pillowcase and black cable ties were found, suggesting an intention to, at least, tie-up and blindfold a person. The Crown described the applicant as a "stand over merchant".

16. There is no doubt the applicant has a long criminal history. It involves both violence and drugs. It is perhaps not as extensive since 2009 as the Crown suggested, although it must be recognised that for some years in the intervening period, the applicant was in prison.

17. The applicant pointed out, that contrary to the picture painted by the Crown, the applicant called the police to the scene of the alleged offending and remained there until the police arrived. The applicant also said that the recent matters for which the applicant had been dealt with by Loukas-Karlsson J on 30 January 2020 had resulted in a suspended sentence, albeit taking into account the time already spent in custody. The following day, however, her Honour refused bail in respect of the current matter. The ultimate effect of her Honour's orders was that the applicant did not get the benefit of the suspended sentence but her time in custody for the present offence is limited to the period since 31 January 2020.

18. There is no apparent flight risk but, to my mind, the real force in the Crown's position is the possibility of interference with the principal Crown witness. The Crown informed me that this witness was terrified about his safety. However, the Crown has acknowledged that there is a presumption in favour of bail, and it is only this factor that has led to my decision to grant bail.

19. The next question is what conditions of bail should be imposed.

20. The parties have put forward largely similar suggested conditions. Those of the Crown are more stringent, and as I said in the course of the hearing, it would only be upon the Crown's conditions that I would grant bail.

21. With one exception, the applicant said she was prepared to accept the conditions. The exception is condition 11, which states that the applicant is "Not to keep any dogs" at her residential address. This seems at first sight to be somewhat excessive. I was informed that the applicant has a number of dogs and has had them for some time. However, if those dogs are of a type and temperament, as suggested by the officer in charge of the matter, so as to prevent the police approaching the house, then the condition is reasonable. Unless some other provision acceptable to the Crown is made, condition 11 will be imposed.

22. Accordingly, the order of the Court is that bail is granted on the conditions proposed by the Crown, subject only to any agreed amendment to condition 11. The publication of the above reasons is limited to the issue of the change of circumstances, that is, all matters referred to prior to [15].

I certify that the preceding twenty-two [22] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.