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Supreme Court 30 November 2015

R v Boatswain

[2015] NSWSC 1828

Homicide
CRIME BAIL FURTHER RELEASE APPLICATION MATERIAL CHANGE IN CIRCUMSTANCES

Citation: R v Boatswain [2015] NSWSC 1828
Court: Supreme Court of New South Wales
Date: 30 November 2015
Judge: Campbell J

Background

The accused was charged with the murder of a family acquaintance, alleged to have been shot at his home in Toongabbie in November 2014. The Crown alleged the motive was his belief that the deceased had influenced his mother to change her will to his disadvantage.

The bail history in this matter was already substantial. An earlier bail judge had granted bail on medical grounds, only for the Court of Criminal Appeal to uphold a Crown detention application. The Court of Criminal Appeal found that, despite the accused's serious illness, he had not been incapacitated to the point where he could no longer pose a threat to Crown witnesses, and expressed concern about his history of access to firearms and generalised threats made against unspecified persons.

The present application came before Campbell J urgently, prompted by a significant deterioration in the accused's condition since the Court of Criminal Appeal's decision.

  • Whether the accused had demonstrated a material change in circumstances sufficient to ground a further release application under the Bail Act 2013 (NSW)
  • Whether, given that murder is a "show cause" offence, the accused had shown cause why his continued detention was not justified
  • Whether the accused's medical deterioration had reached the point of incapacitation previously identified by the Court of Criminal Appeal as a threshold for reconsideration

Decision

Campbell J was satisfied that jurisdiction to hear the further application existed under section 66 of the Bail Act 2013 (NSW), and that section 75 applied. Because murder is a show cause offence, the accused bore the onus of demonstrating why his detention was not justified before any question of unacceptable risk could be considered.

The pivotal evidence came from Dr Sarah Zardawi, an oncology registrar treating the accused, who assessed his prognosis as "hours to days." This represented a material change from the position before the Court of Criminal Appeal, where a three-month life expectancy had been noted only days earlier. Campbell J accepted Dr Zardawi's current clinical assessment over earlier estimates, recognising that terminal conditions can deteriorate rapidly.

The court also drew on the opinion of the accused's treating oncologist, Professor Goldstein, who had stated the accused was no longer fit to stand trial and was unable to instruct counsel or follow proceedings due to his condition. Campbell J observed that this incapacity was relevant to the concern, previously identified by the Court of Criminal Appeal, that the accused might still act on any lingering resentment toward unspecified potential witnesses.

Campbell J found that the accused had shown cause why detention was no longer justified. The need for appropriate palliative nursing care, the importance of allowing family access during his final hours, and the fact that the disease had progressed to the point of incapacitation identified by the Court of Criminal Appeal as the relevant threshold all supported the grant of bail. The court acknowledged the hurt of the victim's family but concluded that granting bail in these circumstances was not inconsistent with proper principle.

Orders Made

  • Bail granted on condition that the accused be of good behaviour
  • The accused to reside at all times, and not absent himself from, such ward at the Prince of Wales Hospital as Professor Goldstein and Dr Zardawi consider necessary for his proper palliative care

Key Takeaways

  • A prognosis of "hours to days," representing a significant deterioration from evidence before a prior court, can constitute a material change in circumstances sufficient to ground a further bail release application under the Bail Act 2013 (NSW).
  • The Court of Criminal Appeal had expressly left open the possibility of reconsideration if the accused's condition reached a point of incapacitation; that foreshadowed threshold informed Campbell J's analysis and ultimately proved determinative.
  • Under section 75 of the Bail Act 2013 (NSW), an applicant charged with a show cause offence must first demonstrate cause why detention is not justified before the court proceeds to consider unacceptable risk.
  • Medical incapacity sufficient to prevent an accused from instructing counsel or following proceedings can be relevant to assessing whether a previously identified risk, such as a threat to witnesses, remains live.
  • Where expert medical evidence conflicts with observations from non-expert witnesses, the court will prefer the opinion of properly qualified medical practitioners.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), sections 66, 69, and 75

Cases
- Director of Public Prosecutions (NSW) v Boatswain [2015] NSWCCA 185
- R v Rodney Boatswain [2015] NSWSC 878