Citation: Director of Public Prosecutions (NSW) v Boatswain [2015] NSWCCA 185
Court: NSW Court of Criminal Appeal
Date: 8 July 2015
Judges: Hoeben CJ at CL, Johnson J, R A Hulme J (judgment delivered by R A Hulme J)
Background
The respondent, a 64-year-old man with long-standing community ties and a minimal criminal history, was charged with the murder of a 75-year-old woman shot at her home in November 2014. The prosecution alleged the respondent believed the deceased had influenced his dying mother to alter her will against his interests, and that he had vowed revenge. The case against him was described as a reasonably strong, though not overwhelming, circumstantial one.
The respondent was granted bail by Beech-Jones J in the Supreme Court. The Director of Public Prosecutions then brought a detention application under s 50 of the Bail Act 2013 (NSW) in the Court of Criminal Appeal, which considered the matter entirely afresh rather than as an appeal or review.
A complicating factor was the respondent's terminal liver cancer, diagnosed approximately six months before the alleged offence. Statistical evidence before the Court suggested he was unlikely to survive more than a couple of years from the date of the hearing.
Legal Issues
- Whether the respondent had shown cause under ss 16A and 16B of the Bail Act 2013 (NSW) why his detention was not justified, as required for a "show cause" offence such as murder.
- If cause was shown, whether there existed an unacceptable risk that the respondent would commit a serious offence, endanger the community, or interfere with witnesses.
- Whether stringent bail conditions imposed by Beech-Jones J were capable of adequately addressing those bail concerns.
Decision
The Court accepted that the respondent had shown cause why his detention was not justified, given the unusual combination of terminal illness with a relatively short life expectancy, the difficulty in preparing his defence while in custody (particularly given his illiteracy or dyslexia, which made reading the prosecution brief to him in custody highly impractical), and the delay before any likely trial date. The Court acknowledged that delay carries greater weight where an accused is terminally ill.
Notwithstanding that finding on cause, the Court turned to the unacceptable risk assessment. The Director's submission that the respondent might fail to appear was dismissed as too vague and speculative. However, two bail concerns carried significant weight: the risk of committing a further serious offence, and the risk of interfering with witnesses.
On the risk of further offending, the Court noted that police held specific fears about the respondent's stated intention to exact revenge against others perceived to have influenced the will change. A phone call recorded while the respondent was in custody revealed his belief that a particular witness was responsible for his imprisonment. The Court found this raised a concrete risk of witness interference. The respondent's past possession of unregistered firearms, the fact the murder weapon had never been found, and the prosecution's contention that he had "nothing to lose" in light of his terminal prognosis all reinforced these concerns.
The Court concluded that even the stringent bail conditions imposed by Beech-Jones J could not adequately address the unacceptable risks of further offending and witness interference. Police could not realistically monitor the respondent around the clock. The argument that custody experience would deter further offending carried less weight given the "nothing to lose" dynamic. Bail was refused, though the Court expressly noted that the respondent's deteriorating health could reach a point where the bail concerns warranted reconsideration.
Orders Made
- The Director's detention application was granted.
- Bail refused.
Key Takeaways
- Showing cause under the Bail Act 2013 (NSW) is a necessary but not sufficient step: even where an accused successfully demonstrates cause, bail may still be refused if unacceptable risks remain after considering available conditions.
- Terminal illness and its practical effect on trial preparation can contribute to satisfying the "show cause" threshold, particularly where an accused is effectively unable to engage with the prosecution brief while in custody due to illiteracy or dyslexia.
- Refusing bail, the Court of Criminal Appeal found that stringent conditions, including residential restrictions, daily reporting, and substantial financial security, were insufficient to address risks grounded in specific, credible evidence of retributive intent and potential witness interference.
- Recorded in-custody telephone conversations were relied upon as direct evidence of a bail concern, namely the respondent's stated belief about a witness's role in his imprisonment.
- The Court expressly preserved the possibility of reconsideration if the respondent's health deteriorated to a point of incapacitation, signalling that bail assessments in terminal illness cases are not static determinations.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B, 18, 50, 67(1)(e), Part 3 Division 2
Cases:
- Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173
- R v Boatswain [2015] NSWSC 878 (decision of Beech-Jones J below)
- R v Kugor [2015] NSWCCA 14