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Supreme Court 24 November 2015

R v Melmeth

[2015] NSWSC 1762

Assault & violence
CRIMINAL LAW BAIL APPLICATION FOR BAIL SHOW CAUSE OBLIGATION APPLICANT TYPE 1 DIABETIC MANAGEMENT OF ILLNESS IN CUSTODY

Citation: R v Melmeth [2015] NSWSC 1762
Court: Supreme Court of New South Wales
Date: 24 November 2015
Judge(s): Schmidt J

Background

The applicant, a 30-year-old woman, had been in custody on bail refused since 30 May 2015. She faced serious charges under the Crimes Act 1900 (NSW), including wounding with intent to cause grievous bodily harm (s 33(1)(a)) and detaining in company (s 86(3)), both of which were defended. A co-accused was also charged in connection with the same alleged offending.

The applicant was a type 1 (insulin-dependent) diabetic. Her application before the Supreme Court centred substantially on the serious difficulties she had experienced in having her diabetes managed appropriately while in custody. The matter was not expected to proceed to trial in the District Court before October 2016, meaning a very considerable further period in custody was in prospect.

The Crown opposed bail. The applicant's parents supported the application, and her eight-year-old son had been in her mother's care since the arrest.

  • Whether the applicant had discharged the "show cause" obligation under s 16B of the Bail Act 2013 (NSW), requiring her to show why her detention was not justified
  • Whether, if cause was shown, the bail concerns identified by the Crown (risk of failing to appear and risk of committing a serious offence under s 17(2)(a) and (b)) gave rise to an unacceptable risk under ss 17, 18 and 19 of the Act
  • Whether proposed bail conditions were sufficiently stringent to address those concerns

Decision

Schmidt J confirmed that the application required a two-step process: first, whether the applicant had shown cause under s 16A; and second, if so, whether any bail concerns constituted an unacceptable risk. Consistent with the Court of Appeal's guidance in DPP v Tikomaimaleya [2015] NSWCA 83, the two statutory tests were not to be conflated, even though some factual matters were relevant to both.

On the show cause question, the court accepted the applicant's evidence about the serious and ongoing mismanagement of her diabetes in custody. A registered nurse and diabetes educator had recommended specific adjustments to her insulin regime in August 2015, but those recommendations had not been implemented. The applicant described daily symptoms including blurred vision, confusion, slurred speech and dizziness, as well as a deeply concerning episode during a transfer to Mulwala in September 2015 in which she did not receive insulin for hours, was not provided food, and was ultimately given the wrong insulin. A letter from an endocrinologist had been taken by Corrective Services before she could provide it to the court. The court was satisfied that cause had been shown, given the combination of serious health concerns, the impact on the applicant's young son, and the lengthy period before trial.

On the bail concerns, the court acknowledged the Crown's identified risks of non-appearance and further offending. However, the court found that a strict and comprehensive set of bail conditions would address those risks to an acceptable level, taking into account the applicant's personal circumstances and proposed living arrangements with her parents.

The application was determined on the balance of probabilities, and bail was granted with extensive conditions.

Orders Made

  • Bail granted on the following conditions:
  • To be of good behaviour
  • To reside at a specified address
  • To report daily to Newcastle Police Station between 8am and 6pm
  • To appear at Newcastle Local Court on 2 December 2015 and as required thereafter
  • Not to drink alcohol or enter licensed premises except in the company of her father or mother
  • Not to take illegal or unprescribed drugs
  • To comply with a curfew (not to be absent from the specified address between 6pm and 8am, except with a parent, for reporting, court appearances, legal conferences, or medical appointments)
  • Not to associate or communicate with the co-accused (except through a lawyer)
  • Not to contact, approach, harass or intimidate the alleged victim in any way
  • To present at the front door on a police officer's reasonable direction to confirm curfew compliance
  • To submit to non-invasive testing on a police officer's reasonable direction to confirm compliance with the drug and alcohol condition

Key Takeaways

  • The Supreme Court confirmed that the two-stage bail analysis under the Bail Act 2013 (NSW) must not be collapsed into one: showing cause under s 16A is a distinct inquiry from the unacceptable risk assessment under ss 17 to 19, even where the same facts are relevant to both.
  • Seriously inadequate management of a chronic medical condition in custody can, in combination with other factors, constitute cause sufficient to discharge the s 16B show cause obligation, even where the charges are serious.
  • Under s 32 of the Bail Act 2013 (NSW), bail applications are determined on the balance of probabilities, with the court free to consider any credible or trustworthy information rather than applying the formal rules of evidence.
  • Bail concerns arising from serious charges need not produce an unacceptable risk finding where sufficiently strict conditions are proposed to address those concerns.
  • Lengthy pre-trial delay was a relevant consideration in the show cause analysis, particularly where the applicant faced the prospect of an extended further period in custody before a trial date.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B, 17, 18, 19, 31, 32
- Crimes Act 1900 (NSW), ss 33(1)(a), 86(3)

Cases:
- Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83