In late April, as the first wave of Covid-19 started to subside, an Indigenous woman from Shepparton in regional Victoria made a bail application in the supreme court.
Two previous applications in the magistrates court had failed, so she had spent 10 weeks in custody with complex health problems.
She had been charged with minor offences, which occurred in the context of drug and alcohol abuse and a violent relationship, but bail was refused because of her extensive history of similar offending – despite criteria in the Bail Act which exist precisely to prevent unnecessarily detaining Indigenous Australians.
The April application was different. Because of the pandemic, the judge and the prosecutor accepted that the woman would spend longer in custody waiting for backlogged courts to finalise her matter than she would ever be sentenced to.
“The Covid-19 pandemic has changed the world in numerous and profound ways,” Justice Michael Croucher said in releasing the woman. “Like almost every other institution, the criminal justice system of this state is not immune from the impact of the pandemic.”
The woman’s case is one of several that has highlighted the possibilities of a post-Covid justice system.
The Victorian attorney general, Jill Hennessy, has made clear she will consider a range of reforms to the system in coming months. Other government ministers have been lobbied to make permanent a range of temporary measures, such as housing for the homeless and transitional accommodation for people released from prison.
The Sentencing Advisory Council found in February that cases similar to that of the Shepparton woman, known as time-served prison sentences, had increased by 640% in seven years. Shortly before the woman was released, Victoria’s prison population had reached a record of almost 8,200 inmates. The greatest increase was in inmates like her who had not been sentenced.
The Greens’ justice spokesman, Tim Read, says the bail act should be overhauled to reduce the number of people on remand, particularly given Covid-related delays will hamper courts for years.
The act was tightened considerably after it was revealed the Bourke Street killer, James Gargasoulos, had been on bail at the time of the 2017 attack, and Read says the changes have disproportionately impacted Indigenous people.
Legislation known as the omnibus bill, which passed state parliament on Wednesday, contains other measures that could be made permanent, aside from controversial powers surrounding detention and authorised officers. These include an increased use of video for court hearings and electronic filing for court documents, both overdue changes that have streamlined hearings.
The bill also allows for the use of video calls for prison visits.
There’s nothing that can replace ... just sitting beside Anna and holding her hand
“Rather than the children going through the quite stressful process of going to visit a parent in prison, a parent gets to visit the child and watch them do their homework, play with the dog,” Reason party MP Fiona Patten said. “Counterintuitively, the technology allows a greater connection than is available via the prison visit scheme.”
Aside from inmates being able to spare their children from the sometimes unpleasant experience of visiting prison, and being able to check up on their pets, virtual visits overcome the logistical difficulties of some families having to travel to prison.
Patten said prison advocates had told her that some inmates who had family overseas were able to speak to them for the first time since being in prison because of the shift to virtual visits.
But Mary Pershall, whose daughter Anna Horneshaw is completing a sentence for murder in Dame Phyllis Frost prison, said the virtual visits could never replace being in the same room.
She is in contact with a network of people who have family in prison, and she says the group is frustrated that the daily public discussions about easing Covid-19 restrictions never address the question of when prisons will return to normal.
Pershall and her other daughter, Kate, care for Horneshaw’s four-year-old son, who was born soon after she was imprisoned. He first visited prison at five days old, but struggles to concentrate during video calls, partially because he is autistic.
“Some quite like it as an alternative, but I don’t think anyone would like it as a replacement from seeing a loved one in person,” Pershall says. “There’s nothing that can replace a hug, or just sitting beside Anna and holding her hand.”