As the COVID-19 pandemic continues to spread, it has become a hot topic for prisoners in custody who are considering making bail applications.

The COVID-19 pandemic has and will particularly affect prisoners in a number of ways.

Firstly, as a result of a number of changes to Court listing procedures as a result of the pandemic (including the suspension of jury trials for matters and the adjournment of a number of proceedings), the Courts are now subject to significant delays in hearing matters. This may cause defendants in custody to be waiting to have their matters heard by Courts for longer than they could expect to receive on sentence for their matters when they are finally heard.

Secondly, the prisons themselves have been subject to significant restrictions as a result of the virus, including the isolation of prisoners in custody and bans on visits by family members, friends and legal representatives. These new restrictions significantly impact the quality of life for prisoners on remand in custody.

Thirdly, it is anticipated that should the virus be introduced into the prison population, the risk of transmission of the virus between prisoners would be far greater than the risk of transmission of the virus in the general population.

Whilst there are no reports yet of Queensland prisoners testing positive to the virus, Queensland Corrective Services have confirmed that five prison officers have now tested positive to coronavirus, with 78 staff self-isolating as a precaution[1]. Visits to correctional centres, both legal visits and visits from friends and family, have now been banned under measures to stop the spread of the Coronavirus.

As the threat of catching COVID-19 in custody heightens, the need for eligible prisoners to apply for bail is also heightened. This has been highlighted in number of recent decisions in several Australian jurisdictions regarding the issue of bail and COVID-19. Some of those recently published decisions are outlined below.

Re Broes [2020] VSC 128

In the Victorian Case of De Broes, the applicant for bail argued that the COVID-19 pandemic justified the argument that “exceptional circumstances” existed to warrant the applicant’s release on bail.

In order to establish that exceptional circumstances existed, the applicant was required to satisfy the court that circumstances existed that ‘must be such as to take a case out of the normal so as to justify the admission of the applicant to bail’. The applicant argued that the undue delay in bringing the matter to trial as a result of new procedural arrangements by the courts and other circumstances occurring as a result of the COVID-19 pandemic would result in lengthy periods of remand, and that therefore exceptional circumstances existed to warrant the applicant’s release on bail.

In this case the court said:

“…in addition to issues of delay, there can be no question that once the virus is discovered in any of the Victorian prisons, there will have to be a significant lockdown for a number of reasons. The transmission between prisoners will be significant and likely to occur at a much greater rate than the transmission that is occurring in the community at present. That will result in a large number of prisoners becoming quite seriously ill, depending on their age and underlying conditions. I appreciate these are matters of speculation to a degree, but the situation is sufficiently urgent to required them to be taken into account.”[2]

The Court ultimately found in this case that extraordinary circumstances existed, and that an already significant delay would be likely exacerbated by the consequences of COVID-19. The applicant was ultimately granted bail.

R v Stott (No 2) [2020] ACTSC 62

In this ACT case, the Applicant had already been previously refused bail in January of this year. In order to be granted bail, the Applicant was fist required to show the Court that there was a change of circumstances from her previous bail application.

In arguing that there was a change of circumstances, the Applicant argued that coronavirus primarily impacted upon her in two ways: She argued that firstly, whilst in prison, she was more susceptible to contracting the virus. She argued that secondly, the limited social activity which she is able to carry on in the prison had been curtailed.

As a secondary concern the applicant also raised that the interference to the court processes that have been, and no doubt will be, a result of the pandemic will cause her trial to be delayed so that she will remain in custody for a longer period before trial.

The Court in this case was not satisfied that the evidence presently available enabled it to say that a person in custody is more likely to contract the virus than if that person was living in the community.

However, regarding the matter of the curtailment of the applicant’s activity within the prison, the Court stated as follows:

“I think the curtailment of visiting rights is a relevant factor and, personal to the applicant, does amount to a change of circumstances. Persons on remand no doubt rely on the limited social contact they are permitted, most of which is achieved through visits. In particular, contact with family is an important element in the life of a person resident at the [correctional centre].”[3]

In this case, the court accordingly found that the changes to the applicant’s life whilst in prison as a result of the COVID-19 restrictions in custody did amount to a change of circumstances, and this allowed the court to proceed with the bail application.

Lynch v Director of Public Prosecutions (No 2) [2020] QSC 64

Turning to Queensland, in this case the applicant had also previously been denied bail and so also was required to satisfy the Court that a material change of circumstances existed from their previous bail application.

In this matter, the applicant raised that the delays to proceedings which were occurring and which undoubtedly would continue to occur as a result of COVID-19, would result in undue delay in the hearing of his matter and therefore comprised a material change of circumstances that would allow the Court to hear his bail application.

In this case, the Court accepted the applicant’s argument in this regard and stated as follows:

“When the first application was heard, the parties were entitled to proceed on the basis that the hearing of these charges would be listed in the ordinary course. That is no longer the case. It cannot be said when these matters might be heard but an additional delay of 12 months is not out of the question. This is a material change and I am satisfied that the applicant has satisfied the test on this basis alone.”[4]

The Court then went on to say:

“The reasoning set out above – which accepted that the change in listing procedures constitutes a material change – also satisfies me that the change in those listing procedures with the consequent unquantifiable delay in obtaining a trial should be taken into account when considering whether the defendant’s detention in custody is not justified.” [5]

In this matter, whilst the Court did accept that the delays in Court listing procedures as a result of the COVID-19 pandemic did qualify as a material change of circumstances, the Court ultimately refused the applicant bail as a result of other personal circumstances of the applicant and other details relevant to the applicant’s case.

However, this decision is still relevant in establishing that the delays to an applicant’s matter being heard in Court as a result of the COVID-19 pandemics is still relevant for the Court to consider whether a material change of circumstances exists to allow for an applicant’s application for bail to be heard by a Court.

As the COVID-19 epidemic continues, so will the risk of delays finalising matters, as well as the transmission between prisoners in custody and the effects of isolation and banned visits on prisoners in custody.

If you or someone you know is in custody and is concerned about the restrictions associated with the COVID-19 epidemic, contact Fuller & White Solicitors now on (07) 3401 9877, and one of our team of qualified solicitors will be ready and able to assist you.


[2] Re Broes [2020] VSC 128 at 39.

[3] R v Stott (No 2) [2020] ACTSC 62 at 13.

[4] Lynch v Director of Public Prosecutions (No 2) [2020] QSC 64 at 27.

[5] Lynch v Director of Public Prosecutions (No 2) [2020] QSC 64 at 39.