The decision to ban visitors from Canberra's jail in response to the coronavirus pandemic has created an opportunity for inmates who would otherwise be ineligible to have new bail applications considered, with a woman already released from custody.
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ACT Corrective Services has stopped visitors entering the Alexander Maconochie Centre in a move described as "a necessary measure to assist in limiting the risk of infection to detainees, visitors and staff".
While the suspension of visits restricts the already limited social contact possible behind bars, it also presents an opportunity to prisoners who have not been sentenced and are locked up on remand pending the outcome of their court cases.
About 40 per cent of the ACT's prison population falls into this category.
If these people have already had bail applications refused once in the ACT Supreme Court or twice in the Magistrates Court, they cannot apply again without demonstrating a change in circumstances or presenting new evidence.
Sharon Ann Stott, who is fighting charges laid after an alleged home invasion in Kambah last year, faced this situation.
The 57-year-old was refused bail in the Supreme Court earlier in the year, ahead of a trial listed for May, but argued in a second application on Monday that her circumstances had changed as a result of the COVID-19 pandemic.
Stott's barrister, Steven Whybrow, said she was at an increased risk of getting the coronavirus disease while she remained in the confines of a crowded prison.
He described the Alexander Maconochie Centre as "a land-based cruise ship", arguing there would be less risk of Stott contracting COVID-19 if she was granted bail in order to self-isolate and live "effectively under house arrest" in Kambah.
Mr Whybrow tendered to the court a letter to Australian governments signed by hundreds of experts, most of them legal academics and lawyers, calling for the early release of elderly, young and minor offenders to prevent avoidable transmissions of the virus behind bars.
He also said Stott's already limited rights to social interaction had changed because her children, who frequently visited her in prison, would no longer be able to do so.
The possibility of Stott's trial, listed to commence on May 25, being delayed because of the pandemic was also raised.
Justice Michael Elkaim dismissed this point, saying Stott would face a judge-alone trial and unlike jury trials, there was no reason yet to anticipate that the case would not proceed on schedule.
The judge also agreed with prosecutor Anthony Williamson that there was no evidence to suggest a person in custody at the Alexander Maconochie Centre was at a greater risk of contracting COVID-19 than someone in the community.
"The applicant's counsel referred to the AMC as a cruise ship, no doubt because of events that have taken place on cruise ships around the world," Justice Elkaim said.
"Other than the presence of a number of people in a confined space, I can see no other similarity between the AMC and a cruise ship."
But Justice Elkaim found the ban on visitors at the jail was sufficient to demonstrate a change in circumstances, allowing him to consider Stott's latest application for bail.
"Persons on remand no doubt rely on the limited social contact they are permitted, most of which is achieved through visits," he said.
"In particular, contact with family is an important element in the life of a person resident at the AMC."
Justice Elkaim granted Stott bail with a lengthy list of conditions attached.
He stressed that the coronavirus was relevant only because the suspension of prison visits showed a change in Stott's circumstances, allowing him to consider her second bail application.
Justice Elkaim said while the virus was not the reason he ultimately decided to grant bail, the publication of the reasons for that decision would be suppressed until after Stott's trial.
With the exception of those relating to COVID-19, the judge also suppressed the details of all arguments made by Mr Whybrow and Mr Williamson, the latter of whom made a number of submissions against bail.
