BAIL APPLICATIONS DURING THE COVID-19 PANDEMIC (NSW)

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Yesterday, the NSW Supreme Court handed down its decision in the matter of Rakielbakhour v DPP [2020] NSWSC 323.

This is the first NSW reported judgment which deals directly with the impact of the COVID-19 pandemic on accused persons who are in custody. It outlines a number of important principles which may be relevant to release (bail) applications during the pandemic.

Importantly, in this case the Court accepted the following:

  • Gaols are particularly susceptible to the rapid spread of the COVID-19 virus. It is difficult, if not impossible, to enforce or facilitate the kinds of restrictions currently being encouraged upon people in the community.
  • While a number of inmates have been isolated for having flu-like symptoms, at this stage there has been no confirmed case of COVID-19 of inmates inside NSW gaols.
  • Inmates are currently subject to more onerous conditions of incarceration. All visits with family, friends and lawyers have been suspended. Inmates are more frequently being kept within their cells for extended periods.
  • Many Local and District Court cases are being adjourned, even those in which the accused is in custody.
  • It may be expected that inmates waiting in gaol will have significant anxiety levels arising from the possibility that the virus is capable of spreading quickly within the gaol if any positive cases of COVID-19 emerge.

The Court accepted that these matters should be taken into account when considering whether to grant an accused person bail and said that, without attempting to be exhaustive, the COVID-19 pandemic may be relevant to the following bail considerations:

  • The need for an accused person to be free for any lawful reason. This might include the need for an accused person to protect themselves from infection or to support their family if there is evidence that a family member is unwell or suffers particular illnesses.
  • The length of time an accused person will remain in custody. Many criminal cases in the Local and District Courts have been, and will continue to be, adjourned or delayed.
  • The need for an accused person to be free to prepare for their court appearance or to obtain legal advice. All legal visits in NSW gaols are currently being conducted by video or telephone. The facilities within the gaol system must be under great strain because so many court cases are being conducted by video link and there are only a limited number of available audio-visual suites.

These matters are also relevant to accused persons who have previously made a release (bail) application that was unsuccessful, but who are considering making a further application for release.

If a family member or friend has been bail refused, you should seek legal advice immediately. Contact Younes + Espiner Lawyers on (02) 9696 1361 for legal advice and assistance.