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Survey Summary Brief: Bail Laws, Practice and Procedure under COVID-19 as they apply to Domestic Violence Offenders

In response to the extraordinary circumstances of the COVID-19 pandemic, the NSW Parliament enacted COVID-19 Legislation Amendment (Emergency Measures) Act 2020, which, amongst other things, amended the Criminal Procedure Act 1986 to bestow regulation-making power on the Minister in consultation with the Chief Magistrate to alter arrangements in relation to bail and sentencing. (s 366(1)(c), (2))

On 24 March 2020, the Chief Magistrate issued a Memorandum: Listing Adjustments During COVID-19 Pandemic (No. 5) which instructed at paragraph 7:

“[For defended hearings where the defendant is in custody and thus subject to a relisting of their case due to COVID-19], the Court will entertain an application for release recognizing that a lengthy period of continuing custody in the Local Court may result in a period of incarceration that would exceed the ultimate penalty that would have otherwise applied should the defendant have been found guilty at an earlier time”…

Notwithstanding assurances made by the Government that violent offenders would not be the target of the new emergency measures aimed at diverting persons out of prison, it appears bail applications are being made by domestic violence defendants in significant numbers, and many of these have already been successful. Even more concerning, is that there has been no systematic process instituted which alerts victims and WDVCAS services of these bail applications so that information about victim risk and safety may be shared with the Court. Neither has there been a system enacted to alert victims and WDVCASs about the outcomes of such applications so that safety planning may be carried out for the purpose of mitigating risk of further harm.

Consequently, there have already been instances where victims of domestic violence have been subject to further domestic violence assaults and apprehended violence order breaches from their abuser in circumstances which could have been avoided had the systems been put in place to mitigate risk….

This briefing paper is based upon the responses to a survey of frontline Women’s Domestic Violence Court Advocacy Service (WDVCAS) workers right across NSW in inner metropolitan, outer metropolitan, regional, rural and remote settings. There were 53 respondents to the survey which was conducted between 2-5 April 2020.

Access the Survey Summary Brief HERE.