COVID-19 AND OUR FUNDAMENTAL SHIFT ON BAIL

, COVID-19 AND OUR FUNDAMENTAL SHIFT ON BAIL

COVID-19 AND OUR FUNDAMENTAL SHIFT ON BAIL

Our Current System and COVID-19

One of the major pillars to stop the spread of COVID-19 is the enhancement of social distancing in our everyday life. Earlier this week, we saw the Premier of NSW implementing further restrictions on all members of this state. This has eventually brought in unprecedented measures to our judicial system, causing major delays in all types of matters. NSW District Court, Chief Judge Derek Price stated that as of April, a number of different types of hearing will be currently suspended as well as a halt to new jury trials

Government Recent Legislation on Prisoners

Recently, New South Wales government has passed an emergency legislation that allows the Corrections Commissioner the power to release up to 14,034 prisoners. This was introduced simultaneously with the United States as they begin to do the same across four states. This was introduced under the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) and has the provision of release of protecting vulnerable inmates and releasing prisoners who pose such low risk to the Community. In other words, there is a prescribed “class of inmates”. This is defined under a number of factors including but not limited to, their health, vulnerability, age, offence, period before the end of the prison sentence and more.

The question is, how can one practice these measures while being held in remand without being sentenced?

Background

Bail is defined under s7 of the Bail Act 2013 as the “authority to be liberty for an offence”. If you have been charged with any offence in New South Wales, there is a presumption that you are innocent until proven guilty. As such, you have a right to have liberty until a guilty decision has been made by the Court. Recent Media and Political attention over the last few years has scoped in such freedom, by placing further amendments to this principle of freedom.

If arrested by the Police, they have the discretion to grant you bail or not. If they consider you a risk and refuse to you, you may still be able to apply for bail at the Local Court.

Bail Act

Section 18 of the Bail Act 2013 sets out a number of factors that the Court must consider on whether they will grant bail. Under these factors, the current epidemic is not explicitly outlined in this case but has been opened to interpretation given the severity of the matter. The most recent Memorandum by Chief Magistrate has spoken about the current conditions and the future of our Court.

Factors related to the Act

The most recent case to deal with this epidemic was Rakielbakhour V DPP [2020] NSWSC323. In this case, they go through the elements that was argued for the need of bail under our current climate.

  • 18(1)(a) which examines the personal circumstances to your case that would be of potential risk if remained in custody. These are matters like being potentially exposed for infection, depending on your current health conditions.
  • 18(1)(g) The length or delay of the accused that has been severely impacted due to measures brought in by the Government and the length of time you will be in remand before your matter is going to be heard. This is consistent with the Courts memorandum to safe keep our judicial officers as well as members of the public.
  • 18(1)(i) refers towards the accused needing to prepare the appearance for Court and to seek legal advice. Currently all legal visits in NSW prisons are being conducted by Video link. This has caused considerable pressure on the Correctional Centre because many of the matters are being dealt with by way of video link and the number of available audio-visual suites is finite.

There are a number of other factors, like Section 19 to meet before bail is even considered for Bail. These unprecedented times have left the Court to take factors and measures to ensure the safety of the public, including those awaiting trial. This does not ensure a guaranteed release of bail but has been taken as considerable weight to the climate our nation faces during these tough times.

What should you do if you or your family are currently held in Remand?

Contact Our Office Immediately! We are specialists who prepare your case thoroughly, negotiate with the police to have the charge dropped and proceed to a defendant hearing to ensure justice is done. National Criminal Lawyers® make submission to persuade the Court on the given day why your charge should be dismissed.

National Criminal Lawyers will guide you from start to finish in your criminal matter.

Our Sydney Criminal Lawyers offer nothing short of excellent results in relation to these matters. With over 80% of defended hearings won and 94% no conviction record, our services are second to none. If you or someone you know has been charged with a criminal offence, pick up the phone and contact our office now.

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