The applicant in this recent matter sought bail for charges of murder and grievous bodily harm with intent. He was charged with four co-offenders, all juveniles, and was not the primary offender. The reasons provide a valuable appraisal of the matters to be taken into account in applications which cite COVID-19 as a relevant factor, and its impact upon the exercise of the discretion to grant bail. Ultimately Davis J granted bail.
9 April 2020
Briefly, the Crown case was that the applicant was party to a common purpose with the primary offender. The alleged offending resulted in two men being stabbed, one fatally wounded. . The applicant’s involvement in the incident consisted of his having:
1. “[acted] as a crowd control[ler] during the fight ”
2. offered encouragement to other participants; and
3. “engaged in violence himself ”. .
Importantly, the alleged violence consisted of the applicant hitting an associate of the two men stabbed with a plastic drink bottle – as his Honour noted, “hardly a lethal weapon”. , .
Two primary arguments put forward by counsel in arguing that the continued detention of the applicant was unjustified related to the apparent lack of strength of the Crown case and the current pandemic. . In relation to the latter, counsel suggested that the pandemic might potentially result in:
1. significant delay in the finalisation of the criminal proceedings against the applicant;
2. a more austere and difficult time in prison due to measures taken within prisons to prevent spread of the disease; and
3. a risk of transmission of the disease in prison to the applicant. .
In assessing the impact of the pandemic upon the exercise of his discretion to grant bail, his Honour noted two preliminary matters. Firstly, any submission regarding COVID-19 and its impact upon an application for bail must be accompanied by an established evidentiary basis. . Secondly, the considerations relevant to a grant of bail can be categorised as those identified in s 16(1) of the Bail Act 1980 (i.e. risk of failure to appear, commit an offence, endanger a person or interfere with witnesses); or those considerations which whilst not directly relevant to risk, may be relevant to other factors. .
His Honour identified the more complex questions as those which arise when the impact of COVID-19 is not directly, or even indirectly, relevant to one of the s 16 risks. . He also importantly stated that, whilst there is a fundamental presumption that bail should be granted, clearly, where one of the risks identified in s 16(1) is deemed “unacceptable”, the court “shall refuse to grant bail ”. .
In the course of his detailed consideration, his Honour stipulated that the following guidelines may be taken into account in these types of applications: –:
- by operation of ss 8, 9, 10, 16(1) and s 16(3), the impact of the pandemic is unable to result in a successful bail application where one of the s 16(1) risks are “unacceptable”;
- the relevance of the conditions in prison may be narrow in its scope. It is well established that upon sentencing, the management of prisoners passes to the executive: see Elliott v The Queen (2007) 234 CLR 38 and Crump v New South Wales (2012) 247 CLR 1;
- provisions of the Human Rights Act 2019 may be relevant as regards the treatment of prisoners;
- the pandemic and any government’s response to it may give rise to considerations relevant to both bail and s 16(1) risks;
- the pandemic and any government’s response to it may give rise to considerations relevant to an applicant showing cause under s 16(3);
- any submission must be accompanied by evidence or information admitted through s 15;
- the pandemic and any government’s response to it are mere factors to be taken into account within the broader consideration of the exercise of discretion;
- any assessment concerning conditions on remand must be made in the context of the Chief Executive’s primary responsibility for the welfare of prisoners; and
- s 16(1) prohibits the grant of bail where any one of the s 16(1) risks is “unacceptable”.
Having regard to those matters together with difficulties with the Crown case, and specifically noting the potential for “a significant delay in having the criminal proceedings finalised because of the COVID-19 pandemic”, , his Honour held that the applicant’s continued detention in custody was not warranted and granted bail. –.
A de Jersey