The following is a case summary and is not intended to be relied upon as legal advice, or considered as such.
Decision: RE JMT [2020] QSC 72
Delivered on: 27 March 2020.
Delivered at: Supreme Court of Queensland at Brisbane.
Question: (among others) What is the relevance of COVID-19, and how is it assessed, in relation to a bail application in Queensland?
Answer: at [69]:
1. The pandemic and any government’s response to it may give rise to considerations relevant to s 16(1) risks.
2. The pandemic and any government’s response to it may give rise to considerations relevant to bail but beyond the s 16(1) risks.
3. The pandemic and any government’s response to it may give rise to considerations relevant to an applicant showing cause under s 16(3).
4. Any submission must be based on evidence or information admitted through s 15 (see: [34]-[36])
5. The pandemic and any government’s response to it can only be factors to consider in the broader consideration of the exercise of discretion.
6. Any consideration of the conditions on remand must be made in the context of the Chief Executive’s primary responsibility for the welfare of prisoners.
7. Whatever evidence is presented as to the pandemic and governments’ response to it, s 16(1) prohibits the grant of bail where any one of the s. 16(1) risks is “unacceptable”
Background: JMT was one five youths conjointly charged with murder and grievous bodily harm. The charges arise from an incident in December 2019 [3]. Three of the youths are remanded in custody, and one was granted bail in January 2020 [3]. Following 100 days in custody, JMT made an application for bail.
The charges followed a fight between two groups: that, with whom JMT was associated, and another [8]. The fight was captured on CCTV [8], and showed JMT hit one person of the other group with a plastic drink bottle.
In the course of the fight, another member of JMT’s group is alleged to have stabbed two members of the other group [11]. One of those persons has died, the other is said to have sustained injuries constituting grievous bodily harm [11]. The Crown accepted that JMT was not the person who did the stabbing [18]; however, the Crown’s case was that JMT aided or enabled his associate to perform the stabbing [19], pursuant to s. 7(1)(b) and/or (c) [principal offenders’ provision] and/or s. 8 [common purpose provision] of the Criminal Code.
Bail application considerations: His Honour first considered the jurisdiction vested by the Bail Act 1980 (Qld), noting s. 13 provides only the Supreme Court jurisdiction for offences which carry a mandatory life sentence upon conviction – murder being such an offence [22].
The critical section is s. 16 of the Act, ss. 16(3) relevantly providing:
[…]
(3) Where the defendant is charged—
(a) […]
(b) with an offence to which section 13 applies; or
(c) with an indictable offence in the course of committing which the defendant is alleged to have used or threatened to use a firearm, offensive weapon or explosive substance; or …
the court … shall refuse to grant bail unless the defendant shows cause why the defendant’s detention in custody is not justified and, if bail is granted or the defendant is released under section 11A, must include in the order a statement of the reasons for granting bail or releasing the defendant. …”
Learned Counsel for JMT, the Public Defender, made submissions identifying JMT’s continued detention was not justified [24] based upon factors including: JMT was not alleged to have used the weapon, the strength of the Crown case, cooperation by JMT, and the current pandemic crisis (COVID-19) as a factor mitigating against continued detention on remand [24].
Ultimately the Public Defender proposed strict and numerous conditions for bail [25-6].
The Crown’s submissions centred on JMT having failed to have shown cause [27].
His Honour referred to COVID-19, as raised in the Public Defender’s submissions [30], in which the Public Defender submitted the relevance of this consideration was:
1. First, there will be a significant delay in the finalisation of the criminal proceedings against JMT;
2. Because prisions have taken measures to prevent the spread of COVID-19, life in prison will be more difficult than usual; and,
3. There was a risk of transmission of the disease to JMT [30].
His Honour referred to decisions in other jurisdictions that had considered the impact of corona virus on the exercise of the discretion to grant bail [31]. These include:
NSW: Rakielbakhour v The Director of Public Prosecutions [2020] NSWSC 323
VIC: Re Tong [2020] VSC 141, Re McCann [2020] VSC 138; and, Re Broes [2020] VSC 128,
His Honour provided a succinct summary of observations at [at 69], as above.
His Honour considered the Crown’s case as pressed against JMT as “not without difficulties” [74], and that JMT’s involvement in the fight was relatively minor [73]. Although the Applicant had criminal history, including street violence on two prior occasions when he was 14; having been in custody for 100 days already, curfew conditions, and conditions preventing him from contacting known associates, were considered to militate risk [81].
Similarly, conditions including curfew, reporting conditions, surrender of passport and prohibition from leaving QLD were said to mitigate flight risk [83]. Relevantly, the movement restrictions in place due to COVID-19 also makes movement or flight more difficult [83].
Outcome: In all, due to the factors, above; a likely delay in finalisation of proceedings due to COVID-19; his youth; his secure place to live; and, conditions imposed; the Applicant was found not to be at an unacceptable risk in relation to the matters raised in s. 16(1) Bail Act. His Honour considered he had discharged the onus placed on him by virtue of s. 16(3) (i.e. he had “shown cause”), and his continued detention was not justified [85].
Other notes: There are provisions in the Human Rights Act 2019 (Qld) [s. 30] pertaining to the treatment of persons detained, which may be entertained in the future, in a similar application [67-8].