Lynch v Director of Public Prosecutions (No 2)

After unsuccessfully applying for bail on 6 March 2020, the applicant again applied for bail on 31 March 2020. In support of his application, he contended inter alia that the present delay in trial listings as a result of the COVID-19 pandemic founded a material change in circumstances since the time of his first application. The applicant further argued that the delay in trial listings also warranted a grant of bail, because he might spend more time on remand than he would serve pursuant to any sentence imposed. Martin J considered that the delay in trial listings constituted a material change in circumstances, but in light of the applicant’s history his Honour concluded that he had not shown cause and dismissed the application.

Martin J

9 April 2020

Background

The applicant was charged with a large number of drug offences, drug-related offences, and a breach of the Bail Act 1980, and was remanded in custody from 27 November 2019. [1]–[2], [4]. After being denied bail on 6 March 2020, the applicant applied for bail again on 31 March 2020, arguing inter alia that a delay in trial listings as a result of the COVID-19 pandemic constituted a material change in circumstances since the time of his earlier application. [1], [9].

The applicant contended that, due to uncertainty in trial listings as a result of the pandemic, he might spend more time on remand than he would serve pursuant to any sentence which may be imposed, and that such a delay was in itself sufficient cause to grant bail. [9], [26], [40]. He also pointed to declared restrictions in prisons as demonstrating a material change in circumstances since his first application, and otherwise justifying a grant of bail. [9], [40]. 

Whether delayed trial listings were a material change

Martin J identified that since the time of the first application, jury trials up until 30 June 2020 had been delisted, and the courts were proceeding on the basis that the ordinary listing procedures for trials will not apply for an indefinite period. [25]. His Honour further observed that no estimate could be given regarding a likely trial date, and that the current circumstances will create a backlog which will further delay hearings for an indeterminate period. [25].

His Honour reiterated that, at the time of the applicant’s first application, the parties had been entitled to proceed on the basis that a hearing would be listed in the ordinary course. [27]. As that was no longer the case, and an additional delay of 12 months in the listing of any trial “was not out of the question”, Martin J was willing to conclude that there had been a material change in circumstances. [27].

Whether declared prison restrictions were a material change

His Honour explained that counsel for the applicant had submitted that a declaration of emergency had taken place in the prison at which the applicant was held, with the resulting measures including lockdown of the prison. [28]. While acknowledging that such matters changed the circumstances in which the applicant was remanded, Martin J pointed out that lockdowns and restrictions on movement in jails are not uncommon, and can occur for many reasons at any time. [29].

Whether the delay justified a grant of bail

Martin J highlighted that the court has expressly disapproved the notion that substantial delay itself establishes that pre-trial incarceration of an accused is unjustified. [41]. His Honour explained instead that delay, and the prejudice it causes, must be considered in light of the perceived strength of the prosecution case, and in accordance with s 16 Bail Act 1980, the evidence against the accused as it appears relevant. [42]–[43]. 

Disposition

In the result, having regard to the applicant’s criminal history, past failures in compliance with bail conditions and other matters, his Honour dismissed the application. [46]–[52].

B McNamara