Citation: R v Bobak [2025] NSWSC 361
Court: Supreme Court of New South Wales
Date: 9 April 2025
Judge(s): Dhanji J
Background
The accused has been charged with murder and held in custody since his arrest on 21 December 2022, a period approaching two and a half years. His trial was listed to commence on 5 May 2025, with an estimate of three to four weeks.
On 3 March 2025, the accused filed a notice of motion seeking to vacate the trial date. The application was based on significant gastrointestinal difficulties he had been experiencing since around May 2024, which he argued left him unable to properly participate in a trial. The Crown opposed the application.
The condition has cycled between diarrhoea and constipation. While symptomatic relief was available, the underlying cause remained undiagnosed. Both expert witnesses (a specialist physician engaged by the defence and the Executive Medical Director of Justice Health) agreed a colonoscopy, and potentially an endoscopy, was necessary as an investigative first step before any meaningful treatment could progress.
Legal Issues
- Whether the trial date should be vacated due to the accused's health condition and its impact on his ability to participate in and receive a fair trial
- How to balance the accused's right to a fair trial against the community's strong interest in bringing a murder charge to trial in a timely manner, particularly given the lengthy period already spent in custody
- Whether the delay in diagnosis and treatment, partly attributable to institutional miscommunication, should weigh in the accused's favour
Decision
Dhanji J accepted that the accused was debilitated to a "not insignificant extent" by his gastrointestinal condition. Although there was room for argument about the full extent of symptoms, the court found the condition was real and was materially affecting his ability to engage with his legal representatives. His solicitor and counsel had attempted extensively to obtain instructions, but conferences had repeatedly been disrupted or terminated because of his condition.
The court emphasised that a fair trial requires an accused to be in a position to attend calmly to the evidence, give instructions, make critical decisions (such as whether to give evidence), and, if giving evidence, respond to examination and cross-examination without being significantly distracted by physical symptoms. At the time of the hearing, the accused's condition raised "real concerns" about the desirability of proceeding.
A complicating factor was that the accused had lost his place in the queue for a colonoscopy after being transferred from a Sydney metropolitan gaol to Bathurst on 7 March 2025 without a medical hold being placed. A subsequent appointment with the gastroenterology team at Prince of Wales Hospital occurred by audiovisual link, and the hospital recorded the accused as having refused the procedure. The court was inclined to view this as a misunderstanding: the accused did not appreciate that refusing to travel to Sydney for the colonoscopy amounted to refusing it altogether. He had since consented to return to Sydney for the procedure.
Dhanji J gave significant weight to the community interest in a timely trial, noting one witness had already died and further delay risked fading memories and additional witness unavailability. However, the court concluded that the accused's condition was unlikely to improve materially before 5 May 2025. Rather than vacating the trial with no new date (potentially pushing it into the following year), the court adjourned it to September 2025 to allow sufficient time for diagnosis and treatment to progress.
Orders Made
- The trial date of 5 May 2025 was vacated
- The matter was adjourned to a date in September 2025
- The court expressed its expectation that all steps necessary to further the accused's diagnosis and treatment would be taken without further delay or misunderstanding
Key Takeaways
- A fair trial requires an accused to be physically capable of attending to evidence, giving instructions, and making critical decisions without significant distraction from untreated medical symptoms.
- The strong public interest in bringing a murder charge to trial in a timely manner does not override fundamental fairness concerns where the accused's medical condition materially impairs participation, though it must be given significant weight.
- An accused person held in custody awaiting trial occupies a different position from an ordinary member of the community waiting for public health services. The integrity of the justice system is engaged where a person deprived of liberty for the purpose of being brought to trial cannot access adequate medical care.
- Institutional miscommunication between Corrective Services and Justice Health (including a transfer without a medical hold and a misunderstood refusal of a procedure) contributed to the delay in diagnosis, and the court treated this as a factor weighing against insisting the trial proceed.
- In granting the adjournment to September 2025 rather than vacating without a proximate new date, the Supreme Court sought to partially ameliorate delay concerns while providing a realistic window for medical progress.
Legislation and Cases Referenced
No specific legislation or cases were cited in the available portion of the judgment.