SUMMARY: Rakielbakhour v DPP [2020] NSWSC 323.
Correctional facility inmates not included in COVID-19 epidemic response laws
The COVID-19 pandemic is a crisis on many fronts. From 31 March 2020, new laws came into effect that prohibits persons from leaving their place residence without a reasonable excuse. This is one of many reforms that is a measure for social distancing to assist in slowing down the transmission of virus in the community. These measures to not apply to inmates in a correctional facility.
The first case to deal with the current pandemic on the issue of bail in NSW was handed down by His Honour Justice Hamill on 31 March 2020: Rakielbakhour v DPP [2020] NSWSC 323.
Bail application after serious domestic violence offences
In Rakielbakhour, the applicant applied for bail in the NSW Supreme Court. He was charged with two serious domestic violence offences of common assault and assault occasioning actual bodily harm that arose out of a single incident with his wife. The offences were not show cause offences. A principle focus of the application was the challenges for criminal justice and prison systems in NSW in light of the current crisis.
His Honour held at [13] that, ‘the existence of the COVID-19 pandemic creates a challenge for the criminal justice and penal systems of a kind not experienced in recent decades, if ever, in Australian law’. In summary, His Honour had regard to the following factors on the application:
- Prisons are particularly susceptible to the rapid spread of the COVID-19 virus.
- There was one reported case of a positive test for COVID-19 at the Long Bay prison hospital.
- Inmates are currently subject to more onerous conditions of incarceration, including the cancelation of visits.
- Many court cases, including criminal cases, are being adjourned and delays to finalise matters are expected.
- It may be expected that inmates waiting in prison will have significant anxiety levels arising from the possibility that the virus is capable of spreading quickly within the correctional facility if any positive cases of COVID-19 emerge.
- The evidence suggests that has been an exponential rise in the number of cases being reported in and around Australia.
Bail is granted on strict conditions
His Honour held at [15] and [19] that he was able to take into account these matters to give practical effect to certain paragraphs within s 18 of the Bail Act 2013 and not simply to meet show cause provisions. The applicant was granted bail on strict conditions.
As the first bail case in NSW to deal with the current pandemic, Rakielbakhour is an important case that highlights how the COVID19 is relevant to the particular vulnerabilities of inmates and issues of bail. With the ever-evolving situation in the community, the courts are likely to an increase in bail application raising this issue and further jurisprudence on the issue can be expected.
