The spread of the Covid-19 virus has been such that it seems inevitable that at some point, an infected person will be remanded in custody and an outbreak in the prison system will occur.
In order to do their best to prevent this happening, Corrections Victoria have implemented a number of measures which will make a person’s time in custody significantly more difficult for them and their friends and family.
There is also a real issue that in a prison environment, where large numbers of people are held in confined space, people will be exposed to larger amounts of the virus and become more critically ill, as has been seen in hospitals and cruise ships. This puts the health of some prisoners who are elderly or have underlying health issues (which is common) at serious risk.
The courts in Victoria have taken notice of this and are factoring the crisis into their decision making. However, it is important to remember that decisions of a court are made on a ‘case by case’ basis and there is no blanket rule that applies to every person in custody.
The response of Corrections Victoria to Covid-19
At this stage, we understand that there have been no prisons put into lockdown as a result of Covid-19. However, every person newly remanded into custody is being required to spend 14 days in quarantine before being accepted into the prison system.
Personal visits to Victorian prisons have ceased, and this arrangement is likely to continue for some time
The response of the Court to Covid-19
As a general rule, the only cases currently being determined in the Magistrates’ Court criminal list are guilty pleas for people in custody and bail applications. Committal Hearings and Contested Hearings for cases in the ‘summary stream’ are being adjourned. It is likely that this arrangement will be in place for some months, will cause a significant backlog in cases needing to be heard and result in an undue delay for people on remand having their case heard.
The County Court has suspended all jury trials until the nominal date of 28 September 2020. This includes jury trials for people in custody and will result in an even more significant delay.
The impact of Covid-19 on bail
It is clear these changes are having an impact on the Court’s decision when considering a bail application. To understand why, it is worth noting that bail law in Victoria states that people charged with serious offences or people who have breached bail or other Court orders are required to demonstrate ‘compelling reasons’ or ‘exceptional circumstances’ in order be considered for release. The Supreme Court has referred to ‘compelling reasons’ as being ‘forceful and therefore convincing’ and ‘exceptional circumstances’ as something that takes a case ‘out of the normal’ .
The impact of Covid-19 on the community has been described by the Supreme Court in bail applications as “extraordinary circumstances” and “unheard of in our community in living experience.” The response to Covid-19 has created court procedure which is very much out of the normal and in many cases, the delays being caused, the isolation prisoners will experience and the potential impacts to their health are forceful and convincing reasons to consider releasing a person on bail.
However, the pandemic is one factor of many that the Court will take into account in deciding whether to release a person on bail. People who are facing years in prison if convicted and/or people intending to plead guilty (and not facing as serious delays) are less likely to be granted bail than those who are awaiting trial or a contested hearing and who might have served their sentence by the time the case is heard. There are numerous other factors that make granting bail more appropriate in some cases, and less appropriate in others.
Before releasing a person on bail, the Court also has to consider whether a person is an unacceptable risk of failing to attend court, interfering with witnesses, committing further offences or endangering the safety and welfare of other people. In the eyes of the Court, the ‘stage 3’ lockdown measures currently in place might reduce these risks for a person with no prior convictions, but not for a person with a lengthy criminal history.
Currently, covid-19 is at the forefront of the Court’s mind when deciding whether to grant an application for bail, however it remains a complicated and technical process for the Court to balance all of the relevant factors and determine the outcome.
 Re Ceylan  VSC 361, 
 Re Sam  VSC 91, 
 Re Broes  VSC 128, 
 Re Tong  VSC 141,