Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v Boatswain [2015] NSWCCA 185 Hearing dates: 8 July 2015 Decision date: 08 July 2015 Before: Hoeben CJ at CL at [1]; Johnson J at [2]; R A Hulme J at [3] Decision: 1. Grant the Director's detention application. 2. Bail refused. Catchwords: BAIL – detention application – show cause offence – murder – where circumstantial Crown case reasonably strong - where respondent terminally ill – where respondent has poor literacy skills - cause shown why detention is not justified – assessment of bail concerns – risk of respondent committing a further offence – risk of respondent interfering with witnesses – respondent poses unacceptable risk – application granted – bail refused Legislation Cited: Bail Act 2013 (NSW) ss 16A, 16B, 18, 50, 67(1)(e), Pt 3 Div 2 Cases Cited: Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173 R v Boatswain [2015] NSWSC 878 R v Kugor [2015] NSWCCA 14 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) Rodney Boatswain Representation: Counsel: Ms M Cinque (Crown) Ms R Rodger (Respondent) Solicitors: Solicitor for Public Prosecutions Legal Aid NSW File Number(s): 2015/195409 Judgment 1. HOEBEN CJ at CL: I agree with R A Hulme J. 2. JOHNSON J: I agree with the reasons and proposed orders of R A Hulme J. 3. R A HULME J: The Director of Public Prosecutions (NSW) ('the Director") has made a detention application pursuant to s 50 of the Bail Act 2013 (NSW) ("the Act") in respect of Rodney Boatswain ("the respondent") who is charged with the murder of Ms Helen Dawson, a 75 year old woman who was shot at her home in Toongabbie on 19 November 2014. 4. This Court has jurisdiction to determine the application given that bail was granted to the respondent in the Supreme Court by Beech-Jones J: s 67(1)(e) of the Act; R v Rodney Boatswain [2015] NSWSC 878 5. The application is to be determined by this Court afresh; that is, it is not an appeal from, or a review of, the decision of his Honour: R v Kugor [2015] NSWCCA 14 at [4]; Director of Public Prosecutions (NSW) v Campbell [2015] NSWCCA 173 at [4]. 6. The offence is one for which the respondent must show cause why his detention is not justified: ss 16A and 16B of the Act. If cause is shown, it is then necessary to determine whether or not bail should be allowed pursuant to the provisions of Pt 3 Div 2 of the Act. This involves a consideration of whether there is an unacceptable risk of the respondent doing any of the following: (a) fail to appear at any proceedings for the offence, or (b) commit a serious offence, or (c) endanger the safety of victims, individuals or the community, or (d) interfere with witnesses or evidence. 1. The Director provided a detailed statement of facts concerning the alleged offence. It is summarised in sufficient detail in the judgment of Beech-Jones J (at [8]-[14]) and need not be repeated. 2. It was his Honour's assessment that the prosecution case "appears to be reasonably strong but certainly not overwhelming". I respectfully agree with that assessment. The Crown in this Court maintained a submission that it had "a strong circumstantial case". I doubt that there is any real difference for practical purposes in those two assessments. Counsel for the respondent concedes on his behalf that it is "a reasonably strong circumstantial case". 3. The respondent is a 64 year old man who has been married for some 40 years and has strong community ties. He has a criminal history comprising convictions for two minor matters that attracted fines some time ago. There is no history of violence or of breaching bail obligations or other court orders. There is no suggestion of him having any criminal associations. 4. A highly relevant matter in this case is the respondent's ill-health. He has cancer of the liver which was diagnosed in April/May 2014, some 6 months before the alleged commission of the murder. The condition is terminal. A more detailed summary of the respondent's condition may be found in the judgment of Beech-Jones J at [18]-[20]. 5. The Crown submitted that there is no way of knowing how long the respondent may live. That is true. The material before the Court includes that "long term survival is unpredictable" but that medical literature suggests that of persons with the respondent's condition who receive the treatment that he is receiving, 19 per cent die within a year; 59 per cent die within 3 years; and 81 per cent die within 5 years. The respondent was first diagnosed in April/May 2014 and started receiving treatment by way of trans-arterial chemo-embolisation in May 2014. Scans carried out in January and in June this year confirm that the condition has progressively worsened. So, the probability is that from now he will not survive more than a couple of years or so. 6. Material from Justice Health (pre-dating the grant of bail last Thursday) includes that the respondent "is currently being treated adequately and within appropriate clinical management guidelines … for his cancer care and should the need arise, he will be transferred to the Long Bay Hospital for palliative / terminal care". 7. At the hearing of the application this morning the Crown provided a statement by Detective Senior Constable Neil in which she sets out what she was told yesterday by the respondent's treating specialist. It confirmed that the care he is receiving is not impeded by the fact that he is in custody. It also confirmed that the treatment he is receiving does not appear to be slowing the disease; in fact there are signs the cancer may have spread beyond the liver. 8. Another relevant matter is that the respondent is said to be either illiterate or dyslexic. Preparation of his case for trial will undoubtedly be difficult if he remains in custody, given that the prosecution brief of evidence needs to be read to him in its entirety. The Crown's response to this is that having someone read to him the brief of evidence is something that would be necessary whether he has bail or not. But the practical reality is that it would be a task far more easily undertaken if he is at liberty. The Crown's suggestion that someone could record a reading of the brief which could be replayed by the respondent in custody is not a practical option. It may be accepted that obtaining instructions from the respondent in preparation of the defence case for trial will be challenging and burdensome. 9. The matter is listed for a committal hearing in the Local Court on 25 September 2015. Assuming that he is committed for trial, it is likely that a trial will not take place until the end of this year at best and more likely early 2016. There is scope for the matter to be dealt with more expeditiously but that is a matter for the parties. In the scheme of things, this time frame is not inordinate. But the submission by counsel for the respondent that such delay ought to carry greater weight in the case of an accused person who is suffering from a terminal illness should be accepted. 10. The Director has argued that all of the statutory bail concerns are relevant. 11. In support of there being a concern that the respondent may fail to appear in court as required, it was submitted that "he may perceive that he has everything to gain and almost nothing to lose by avoiding court". The submission is too vague, general and speculative to found any real concern about a failure to appear. 12. What is alleged against the respondent is that he perceived that his mother's will had been changed in a manner that was adverse to him. The deceased was a good friend of his mother and he thought that she had influenced his mother to do this in her dying days. It is also claimed that the respondent thought that his daughter had "interfered" and he was "very upset" with her when he first found out about the change in the will. After his mother's death he is said to have vowed to take revenge against the deceased "and everyone responsible". One claim is that he said, "I will wait a couple of years so that no one suspects me". The respondent's mother died on 25 November 2012 and Ms Dawson was killed on 19 November 2014. 13. Police hold fears that the respondent may be intent on exacting revenge, not only upon the deceased but upon others he perceived had something to do with the change in his mother's will. It would not be appropriate to mention who those people are but, if the allegations are true, there is a sensible basis for the police having such fears. 14. Police have reviewed recordings of telephone conversations the respondent has had whilst in custody. In a conversation on 22 May 2015 with his wife he is said to have expressed a belief that he was in gaol because of the evidence of a particular witness. The statement of that witness is unsigned, but that is said to be because the witness is not prepared to do so until the respondent dies from his cancer. The detective in charge of the case is concerned that regardless of whether the witness gives evidence at trial, an immediate risk exists because of the respondent's belief that what has been said by the witness put him in gaol. 15. Police have information that the respondent has been in possession of a number of unregistered firearms in the past without ever holding a firearms licence. 16 rounds of ammunition but no firearms were found when his garage was searched. 16. The deceased was killed by a firearm discharged as she answered the front door of her home. There is, as previously indicated, a reasonably strong circumstantial case that the respondent was the shooter. The murder weapon has not been found. On the Crown case, he must have disposed of or concealed the firearm somewhere and knows where he did so. This adds to the concern about the safety of others who the respondent perceives had something to do with the change to his mother's will or with him being in gaol. If the prosecution theory is correct that the respondent killed Ms Dawson for the motive stated, it was clearly an irrational but extremely violent act of retribution. There is some force in the prosecution contention that the respondent has nothing to lose by continuing to exact retribution against others. 17. The respondent's wife has provided a statement to police and is a potential witness for the prosecution. According to the police officer in charge of the investigation, following the respondent's second interview with police on 30 January 2015 he became agitated in a subsequent conversation with his wife on finding that she had provided information that was inconsistent with what he had said. He has been recorded as having told her, "Just say you don't remember alright?" The conditions of the bail granted last week require the respondent to live with his wife. 18. Counsel for the respondent referred to the fact that influencing his wife about the evidence she might give is something that could be achieved by him regardless of whether he is in gaol or at liberty. Reference was also made to the fact that his daughter was a visitor to him in gaol and that his brother supported his application for bail. There is an issue as to whether his daughter's visit was just on one occasion or more often. 19. Whilst the respondent is gravely ill, at this point it is not something that incapacitates him to any significant degree. He had almost daily telephone contact with his wife whilst in gaol with the content of the conversations being concerned with trivial day to day matters; his terminal condition was rarely discussed. The discussion of his daily activities included how he was spending time watching movies and using the gym and recreational yard. Counsel for the respondent conceded that he has no current symptoms that render him incapable of day to day activities. 20. I am satisfied that in the unusual circumstances of this case, particularly having regard to the respondent's grave condition of ill-health with relatively short life expectancy, that there is a strong case made for cause being shown why his detention is not justified. 21. The conditions of bail that may be imposed are amongst the list of matters in s 18 of the Act that are required to be considered in assessing bail concerns and whether there is any relevant unacceptable risk. The assessment requires consideration of whether such conditions could address bail concerns. 22. The conditions of bail imposed by Beech-Jones J are quite stringent. They involve requirements as to residence; not leaving it unless in the company of his wife and only for nominated purposes; daily reporting to a police station; not applying for a passport or going within proximity of international departure points; not directly or indirectly contacting prosecution witnesses; and agreeing to forfeit and providing security in the sum of $250,000 if he fails to appear in court. 23. Notwithstanding such conditions, I am satisfied on the balance of probabilities that there are unacceptable risks of the respondent committing a serious offence and of interfering with witnesses. There is some force in the submission of counsel for the respondent that an awareness of police attention upon him will serve as a disincentive for further offending. However, the practical reality is that police are unlikely to be able to devote around the clock and privacy invasive resources to monitoring everything he might say or do. Moreover, the submission that his experience of custody will serve as a disincentive does not carry as much weight as it usually might in the face of the Crown's contention that "he has nothing to lose". 24. I conclude that at the present time, bail should be refused. However, I well recognise that the respondent's health situation may reach a point of incapacitation where the bail concerns need to be reconsidered. The present determination should not be thought to foreclose such reconsideration. Orders 1. I propose the following orders: 1. Grant the Director's detention application. 2. Bail refused. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 July 2015