Bail and COVID-19
The current pandemic has affected court proceedings and how some procedures and charges are dealt with by the courts.
Bail Applications may be moved between courts and the magistrates have to consider the safety of everyone involved.
We have also run Bail Applications by video-link where we represented clients to the Court and presented our arguments via video connections between the Court and our office.
Custodial sentences may not always be the solution and reporting conditions may have to be limited because of the threat of contamination from COVID-19.
Current Cases
We recently appeared for a client who had been arrested and charged for possessing prohibited firearms as well as have prohibited drugs in his possession.
Although the matter was initially listed at Central Local Court, the protocol under COVID-19 is to list bail applications at the Local Court Downing Centre.
FIREARM OFFENCES
The firearm offences were the most serious charges. They carry a maximum penalty of imprisonment for 14 years.
The police prosecutor argued that bail should be refused. The prosecution argued that they had a strong case which would result in a custodial sentence.
We argued that the “guns” were all gel blasters and that although these are still classified as firearms that in the circumstances of the case, our client would not necessarily be facing a custodial sentence.
The Magistrate agreed with us that it was not a convincing case for a custodial sentence especially in circumstances where it has been argued that the spread of disease including respiratory diseases is higher in prison.
The World Health Organisation released an interim guideline paper on 15 March 2020, “Preparedness, prevention and control of COVID-19 in prisons and other places of detention,” which recommended that “Enhanced consideration should be given to resorting to non-custodial measures at all stages of the administration of justice, including at the pre-trial, trial and sentencing as well as post-sentencing stages.”
We also highlighted the difficulties in reporting with the social distancing and restricted travel imposed by government regulation during the current pandemic.
The court and the prosecutor agreed that reporting conditions were not necessary under the current climate.
Conditional Release on Bail
The court therefore imposed a conditional release on bail on the following conditions:
That the client enter into an agreement without surety to forfeit the amount of $5,000 in the event that he breach his bail conditions;
That reside at specific residence; and
Surrender his passport.
Our client was very pleased with being granted bail given the severity of the charges.
The financial surety was an added condition which gave the Court the assurance that bail would be complied with while there are restrictions on reporting during the pandemic.
FINANCIAL CONDITIONS
In another recent matter, our client was arrested after being pulled over in his motor vehicle by Police who alleged that he was driving erratically. The Police found drugs, cash and a torch in the car.
CHARGES ON ARREST
Our client was charged with the following:
Possess or use prohibited weapon without permit;
Supply prohibited drug;
Deal with the proceeds of crime (cash).
Our client was refused bail by the Police.
When the matter was listed at the Local Court Downing Centre, we applied for bail for our client which was opposed by the Police.
We successfully argued that the torch was not a weapon, that although the drugs were in our client’s possession they were for his personal use and that there was no evidence that that the drugs were for supply or trafficking.
We also argued that as our client was in full-time employment, it was reasonable for him to have cash in his car.
Our client’s case was complicated as he had been released on parole and even though the charges were made while he was on parole, he was still granted bail.
Our client was granted bail on the following conditions:
That he live at specific residence;
That he forfeit the amount of $5,000 if he breaches his bail conditions;
An acceptable person(s) enter into an agreement without security forfeit in the amount of $5,000 in the event that he breaches his bail conditions.
BAIL CONDITIONS DURING COVID-19
The Courts are very aware of the current circumstances and the potential consequences of custodial sentences.
The Courts will always have as their first priority the safety and well-being of the general public.
With this in mind, the Courts are working out the best outcomes by maintaining the Government Regulations within the Court system.
By imposing heavy financial constraints on the client and enforcing residential conditions, the Courts are ensuring that bail conditions will be complied with and freeing up the time of the Police who have added responsibilities during COVID-19. If the client breaches bail when given these conditions, then the inevitable custodial sentence will be applied.
If you or your family and friends are applying for Bail or for a review of Bail please do not hesitate to contact us so we can advise you about your options.
NOTE: This is not legal advice and is provided for information only.