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Supreme Court 2 July 2015

R v Rodney BOATSWAIN

[2015] NSWSC 878

Homicide
BAIL APPLICANT CHARGED WITH MURDER SHOW CAUSE OFFENCE ASSESSMENT OF STRENGTH OF CROWN CASE APPLICANT HAS TERMINAL LIVER CANCER CAUSE SHOWN

Citation: R v Rodney Boatswain [2015] NSWSC 878
Court: Supreme Court of New South Wales
Date: 2 July 2015
Judge: Beech-Jones J

Background

In November 2014, a 75-year-old woman was fatally shot in her home at Toongabbie, New South Wales. The accused, a 64-year-old man, was arrested and charged with her murder in February 2015 and had remained in custody since that time. He had only minor prior convictions of no relevant significance.

The accused had been diagnosed with terminal liver cancer in May 2014. He was not a candidate for surgery or transplant and was receiving palliative chemotherapy treatment. Medical evidence indicated his condition was worsening, with recent scans showing metastatic spread not previously present.

The accused applied to the Supreme Court for bail. The Crown opposed the application, relying on the strength of its circumstantial case and concerns about the risk of witness interference and the commission of further offences.

  • Whether the accused had shown cause, under s 16A of the Bail Act 2013, why his continued detention was not justified, given the serious nature of the charge (murder is a "show cause" offence carrying a maximum of life imprisonment)
  • Whether, if cause was shown, any bail concerns existed under s 17 of the Bail Act 2013
  • Whether any such bail concerns gave rise to an unacceptable risk under s 19, assessed by reference to the factors in s 18, including the strength of the Crown case and the accused's health

Decision

Stage one: Show cause

Beech-Jones J applied the two-stage framework confirmed in DPP (NSW) v Tikomaimaleya [2015] NSWCA 83. At the first stage, all the circumstances are relevant to whether the accused has shown that continued detention is not justified. The court assessed the Crown case as "reasonably strong but certainly not overwhelming," noting it was entirely circumstantial and turned heavily on CCTV footage linking the accused's car to the scene, evidence of motive, and alleged admissions. His Honour was cautious about the weight to be given to a co-worker's report of a damaging out-of-court statement, noting it had not been put to the accused in police interviews.

The accused's terminal cancer diagnosis weighed significantly at this stage. Medical evidence established that his condition was life-limiting and deteriorating, with statistics indicating a meaningful probability he would not survive to trial. Arrangements for palliative and terminal care were already in place within the custodial setting. The court found that the prospect of the accused dying in custody before his trial could be held, or shortly after any conviction, was sufficient to show cause.

Stage two: Unacceptable risk

At the second stage, restricted to the factors in s 18, the court accepted that bail concerns remained, particularly the risk of witness interference and the commission of a serious offence. However, his Honour found that strict conditions amounting to effective house arrest could reduce those risks to an acceptable level. The accused's deteriorating health was also relevant here, as it was expected to continue limiting his physical capacity over time. The court was not satisfied any bail concern posed an unacceptable risk under the proposed conditions.

Orders Made

Bail was granted on the following conditions:

  • Reside at a specified address
  • Not leave that address except accompanied by his wife, and only for specified purposes: reporting to Quakers Hill Police Station, attending legal representatives, court appearances, pre-arranged Centrelink appointments, medical appointments, or hospitalisation
  • Present to police attending the address to monitor compliance with bail conditions
  • Report daily to Quakers Hill Police Station between 8:00am and 8:00pm
  • Not apply for a passport
  • Not approach within 500 metres of any point of interstate or international departure, including any airport
  • Not contact or attempt to communicate, directly or indirectly, with any Crown witness except through legal representatives (with narrow exceptions for specified family members)
  • Enter into an agreement to forfeit $250,000 if he fails to appear, secured by his interest in a jointly owned property

Key Takeaways

  • Under the Bail Act 2013, murder is a "show cause" offence requiring the accused to demonstrate why detention is not justified before the court proceeds to assess bail concerns and unacceptable risk. The two stages involve different considerations: the first permits all circumstances to be weighed, while the second is confined to the statutory factors in s 18.
  • Terminal illness constitutes a weighty circumstance capable of satisfying the show cause threshold, particularly where there is a real prospect that the accused will not survive to trial or will die shortly after conviction.
  • A circumstantial Crown case, even where it is reasonably strong, does not automatically preclude bail. The Supreme Court distinguished between a case that is "reasonably strong" and one that is "overwhelming," treating the distinction as relevant to the overall assessment.
  • Strict conditions amounting to house arrest, accompanied by daily reporting obligations, financial security, and restrictions on contact with witnesses, can reduce residual bail concerns to an acceptable level even in serious homicide matters.
  • Uncertainty about the admissibility or weight of particular items of evidence, such as alleged out-of-court admissions not put to the accused during police interviews, is a legitimate factor in assessing the strength of the Crown case at a bail hearing.

Legislation and Cases Referenced

Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B, 17, 18, 19

Cases:
- DPP (NSW) v Tikomaimaleya [2015] NSWCA 83