Supreme Court New South Wales Medium Neutral Citation: R v Melmeth [2015] NSWSC 1762 Hearing dates: 18 November 2015 and 24 November 2015 Date of orders: 24 November 2015 Decision date: 24 November 2015 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: Bail granted with conditions. Catchwords: CRIMINAL LAW – bail – application for bail – show cause obligation – applicant type 1 diabetic – management of illness in custody – cause shown – bail concerns and unacceptable risks – bail granted with strict conditions Legislation Cited: Bail Act 2013 (NSW) Crimes Act 1900 (NSW) Cases Cited: Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83 Category: Principal judgment Parties: Carly Melmeth (Applicant) Regina (Respondent/Crown) Representation: Solicitors: Mr D Laird (Respondent/Crown) M P Ryan (Applicant) File Number(s): 2015/285450 Publication restriction: None EX TEMPORE Judgment 1. On 18 November 2015 the applicant pursued her application to be released on bail, having been charged with serious offences under the Crimes Act 1900 (NSW) of wound person with intent to cause grievous bodily harm (s 33(1)(a)) and detain in company (s 86(3)). She has been in custody bail refused since her arrest on 30 May 2015. 2. The applicant is next due before the Newcastle Local Court on 2 December, when the balance of the brief is due to be served. The charges involve a co-accused and a victim, on the applicant's case another drug user, who claims to have been detained by the two accused, threatened, forced to use a drug and very seriously assaulted. The charges are defended. 3. There is no issue that it is likely that there will be a very considerable further delay in the matter going to trial in the District Court. The applicant has been advised that it will not be heard before October 2016. That is not disputed. 4. The Crown opposes bail. The show cause obligation 1. At common law a person seeking bail is entitled to the presumption of innocence and has a general right to be at liberty. Those remain relevant considerations when this bail application is determined in accordance with the provisions of the Bail Act 2013 (NSW). 2. There is no issue that s 16B of that Act imposes an onus on the applicant to show cause why her detention is not justified. Accordingly, this application must be refused, unless the applicant satisfies that obligation. Whether that burden has been met is in issue. 3. Determination of this bail application involves a two-step process, even though matters relevant to the show cause test relied on by the applicant are also relevant to the question of bail concerns which the applicant poses and the unacceptable risk test which must be considered in accordance with s 17, s 18 and s 19 of the Act, if cause is shown. 4. The applicant relies on a combination of factors to satisfy the show cause requirements of s 16A. Under that section, however, the question of whether the applicant has satisfied the obligation to show cause that her detention is not justified, is not confined to matters relevant to bail concerns and the assessment of risks, which must be determined in accordance with other statutory provisions. Further, the statutory tests may not be conflated, as is discussed in Director of Public Prosecutions (NSW) v Tikomaimaleya [2015] NSWCA 83. 5. The matters on which the applicant relies include evidence she has given as to her serious ill health and the ongoing problems it has caused during her first time in custody with its management, as well as other evidence as to her health and personal circumstances, and the stringent conditions of bail which she proposes in order to address the bail concerns and risks identified by the Crown, namely risks of failing to appear and of committing a serious offence (s 17(2)(a) and (b)). 6. The application has to be decided on the balance of probabilities (s 32), taking into account evidence or information considered to be credible or trustworthy in the circumstances. It is not to be undertaken according to the laws governing the admission of evidence (s 31). 7. The applicant is aged 30 years. Her application is supported by her parents. She has been the sole carer of her 8 year old son since he was aged 4. He has been cared for by the applicant's mother, since she drove him home to learn from the applicant's neighbour, that the applicant had been arrested the previous day. Her mother had received no contact from police, or any other enquiry as to his welfare. She described her concerns about the impact of the applicant's bail refusal on the applicant's deteriorating health, as well as on the wellbeing of her grandchild, in a letter in evidence. There is also in evidence, a letter from the applicant's father, with whom it is proposed she would reside, if granted bail. 8. The applicant is a type 1 diabetic. On 28 July, two Justice Health certificates were issued by Dr Meldrum, at the Dillwynia Correctional Centre, certifying that the applicant has poorly controlled insulin dependent diabetes, causing her to have some blurred vision and dizziness on frequent bending, as well as a past history of pneumothorax. He recommended that she have 3 blankets at night and that she be allowed regular breaks and avoid frequent bending. 9. These certificates provide for custodial officers to indicate their receipt. They are, however, unsigned. The certificates also provide: "This certificate lists a requirement of the Justice Health for appropriate management of the health needs of this inmate. Local health staff are to be directly advised by custodial staff if the requirement cannot be met so that satisfactory alternative arrangements can be agreed. In the absence of such advice, it will be assumed that the recommendations have been carried out. Custodial staff may request a review of the requirement by their clinic staff if they consider it necessary or desirable." 1. In a letter of 28 August 2015, Mr Connally, a registered nurse and credentialed diabetes educator at the Nepean Diabetes Service, advised Dr Meldrum that adjustments were required to manage the applicant's diabetes. He recommended: "insulin: Novorapid 4-12 units at meals - Currently Carly states she gets her Novorapid at least 30 mins before she eats. Novorapid's onset is within 10 minutes. Then she bases her next dose on her current BGL. This is not ideal. Carly has done carb counting before where would estimate her next dose based on the carbs she was about to eat. This generally leads to better control. I would therefore recommend • Insulin to be given immediately with food to avoid hyoglycaemia • Dose decided on the carbs about to be eaten not on the current glucose level. Carly was originally having between 1 & 2 units per 15gms of carbohydrate and is able to discern this. We can always arrange a dietitian appt to confirm this if necessary. I have given Carly an insulin pen which measures in ½ units so she can try, for example, 1 ½ units per carb. This pen requires a penfill cartridge. • She needs to have a BGL around 2 hours after dinner to assess the effect of her dinner dose of Novorapid Lantus 22 units at dinner - Because the slow acting Lantus is given so early i.e. 4.30 pm it has less chance of improving the fasting level often leading to increased doing and consequent hypoglycaemia in the middle of the night. I would suggest: • Reducing the dose to 20 units • Giving the Lantus at the time of testing 2 hours after dinner which will allow more of it to be working by morning" 1. In a letter of 20 September, the applicant stated that no attempts had been made in custody to respond to this advice. The result was that daily, she was experiencing symptoms of blurred vision, slurred speech, confusion, dizziness, being off balance and sweating. She was also suffering swelling of her ankles, which she was concerned could indicate a diabetic related kidney problem. She also feared that some of these symptoms could precede a diabetic coma. 2. On 10 September the applicant was transferred to Mulwala. She said that she had not received insulin before she left, or until some hours after her arrival there. She was then left in a cell, having not eaten since 8.30 am and despite using the medical emergency button, was not given insulin at the correct times, or given food until 3 pm. She requested to see a nurse, because she was feeling unwell, with blurry vision, sweating and was feeling faint. The response was that she was processed last. The applicant said that she began fearing for her life and was left begging to see a nurse. Another inmate responded to her distress, by providing her with a mintie. When she saw a nurse she was handed the wrong insulin. The result of her anger and frustration over her treatment was that she was put in a detox cell, where she was kept under camera observation in a lit room, for a week 3. On 12 September, whilst at the clinic, she did not receive her long lasting insulin or prescribed medication which helped her sleep. The medical button she later used was not responded to. She also said in her evidence that her blood sugar tests in custody, which give an average reading of sugar control over a 3 month period, have gone up, indicating poor control. 4. The applicant also gave oral evidence that since her September letter, there had not been anything done to improve her health. She had been kept in a cell with no food for a number of hours; she had been left there when she requested to see a nurse, even after pressing the emergency button; she had a special diabetic tester which would help monitor her diabetes, to which she was not allowed access in custody; she saw an endocrinologist on 13 November, who had provided a letter, which she understood said that the tester would improve her health and recommended what needed to be done in relation to her diabetes; the letter had been taken by Corrective Services and she had not been able to get it back. 5. The applicant also said that she needed more insulin, in order to bring her sugar levels down; that she needed to receive her insulin injections at the same regular times daily; and that she also needed to be given food on a regular basis, as well as access to her diabetic tester, if her condition was to be controlled. Why she could not get a prescription for that tester in custody, had not been explained to her. 6. In cross-examination the applicant agreed that Justice Health had made an appointment for her to see an endocrinologist at Nepean Hospital, although she said first, it had only made an appointment with a diabetic educator. She had then waited 3 months to see the endocrinologist. 7. The applicant also said that daily she suffers symptoms of blurred vision, slurred speech, sweating and shakiness and that not receiving regular insulin could cause hypoglycaemic episodes. She agreed that insulin was not being withheld from her and that the reason she was not receiving the insulin she required, was because she was in the prison system. She also said that she regularly had to advise officers that she was an insulin dependent diabetic and that she had begged for her records to be checked, but on occasions had been laughed at and told to sit down before she fell. She said that she found her circumstances to be very distressing. 8. When questioned as to the last occasion on which she did not get her insulin when she needed it, her evidence was that it was two days previously, when taken to Newcastle for court, when the truck was 2 hours late. The result was that she was on the truck for three and a half to 4 hours and had to request a muesli bar. When questioned as to whether she had complained, she said that she had raised her concerns with her solicitor and had also made a complaint to the Health Commission 9. Despite this evidence the Crown's attitude remained that the application for bail was opposed. I indicated that it seemed to me that the evidence potentially provided a basis on which it could be concluded that cause had been shown. The Crown then sought an adjournment, in order to meet the evidence which had been led in support of the application . 10. A short adjournment of the hearing on 18 November was not opposed by the applicant, but the date the Court had available, 20 November, suited neither party. It was thus listed for further hearing on 24 November. The Crown then raised another difficulty in obtaining the evidence it required, by that date: "LAIRD: I had a matter before McCallum J earlier this year where I asked a Justice Health to prepare a report. They refused to do a report unless directed by the Court. HER HONOUR: I direct Justice Health produce a report. LAIRD: And a report would normally take between four and six weeks. HER HONOUR: I direct Justice Health produce a report for the Court to consider at the adjourned hearing of this application on Tuesday 24 November at 9.30am. LAIRD: If no report is produced I think there is sufficient material for your Honour to have overcome the show cause issue. HER HONOUR: You need to have an opportunity, but it needs to be a reasonable one in the circumstances. It is a question of this material being directed to the relevant person, then that person taking the time to produce the report." 1. In order to address the difficulty which had been raised by the Crown, the direction was made in the form of an order, which was conveyed later that day to Justice Health. 2. On 19 November the order elicited a response directed to the Court Registry in these terms: "Please be advised that any kind of medical report takes 4 weeks to complete, so without sufficient time we are unable to comply with this request. Even pulling out all stops (transfer of medical records, allocation of a clinical director) there simply is not enough time. I spoke to David Laird from the ODPP regarding this matter this morning and I understand he was going to subpoena production of the medical records to Court which may resolve the matter. As an aside, this matter seems to be a patient complaint and I would encourage the patient to use the many channels available to her should she have any concerns regarding her care or treatment provided by Justice Health. She is able to speak to the Nursing Unit Manager, Health Care complaints Commission or NSW Ombudsman should she have a complaint she wants to be investigated." 1. That same day on the Crown's application a subpoena was issued to the Department of Corrective Services, requiring the production of the applicant's Justice Health file to the Court. At the resumed hearing on 24 November, the Court's order had not been complied with, nor had the applicant's Justice Health file been produced to the Court. 2. The resourcing difficulties with which the Department of Corrective services is currently contending, given record numbers of persons held in custody in NSW, are a matter of common knowledge. Nevertheless, the difficulty with Justice Health's response to an order of the Court made on a bail application such as this, when a Crown application for an adjournment is granted and the order is made at its request, is patent. So is the problem with the response to the subpoena or rather the failure to respond to the subpoena. Both of these difficulties will be dealt with separately, when Justice Health appears before the Court to explain its failures to obey the Court's order and the subpoena. 3. At today's hearing the Crown was not in a position to lead further evidence to respond to the case advanced at the earlier hearing by the applicant. A further adjournment of the release application was sought, in order for evidence to be pursued. The adjournment was opposed. It was not granted. In the circumstances, I was satisfied that the Crown had had a fair opportunity to obtain evidence to meet the case advanced on this application. In the circumstances I was well satisfied that the dictates of justice required the refusal of the adjournment application and the hearing of the bail application to finality today. 4. On all of the evidence, I am satisfied that the applicant has met the obligation to show cause. That was not seriously in issue at the resumed hearing. 5. Despite the seriousness of the offences with which the applicant is charged, the management of her potentially life threatening illness in custody is such that I am satisfied that given the significant further delay before any trial in the District Court, of up to a further year, that the applicant's continued detention in custody pending the hearing is not justified. That conclusion is reinforced by the evidence before the Court as to the bizarre nature of the alleged offending, on the Crown case, offending in which the applicant was involved while adversely affected by drugs. In her evidence the applicant said that her decision to take drugs was the worst she had made in her life. That recognition, when considered together with the other evidence before the Court as to the conditions under which the applicant is kept during her first time in custody, her limited record of past offending and the stringent conditions which will be imposed on her when released on bail, made the conclusion that the applicant's further detention prior to trial unjustified, unavoidable. 6. Detention while bail refused, in this case for some 18 months before any trial, ought not give rise to such significant risks to an applicant's health as have here been established on the evidence this applicant is being subjected to in custody, notwithstanding the seriousness of the charges which she faces and the possibility that a lengthy custodial sentence will be imposed upon her, if she is convicted. Bail concerns and unacceptable risks 1. That conclusion means that the questions of bail concerns and unacceptable risks must be considered in accordance with the statutory requirements. 2. There was no real issue that the applicant posed the bail concerns identified by the Crown, given the serious offences with which she is charged, involving as they did alleged forced drug taking, serious assaults and threats to the victim's life. 3. Whether the risks which she poses in relation to those bail concerns were shown not to have been unacceptable ones, was however in issue. They have to be assessed in light of the evidence as to the relevant matters, particularly those specified in s 18. 4. The Crown's case was that given the strength of the case against the applicant; that her alleged victim was known to her; that she had invited him to the premises where she and the co-accused had subjected him to serious threats, intimidation, assaults, constraint and physical and mental torture, until he was able to escape and contact police, after telling a witness repeatedly that he had been stabbed and that the accused were going to kill him, and that he was found on examination to have been suffering stab wounds to his upper right arm and left elbow, as well as rope burns to his wrists and ankles and swelling to his face, as well as cuts and bruises, it could not be concluded that the risks which the applicant posed were not unacceptable ones. 5. While it was acknowledged that the applicant's criminal record was short, with no failures to appear, it was submitted that she had a longstanding drug addiction and on the occasion of this offending, had injected herself with an unknown substance, shortly before the events the subject of the charges had unfolded. It was also relevant that she had been on bail in relation to another offence, when those alleged offences were committed. In the result the Court could have no confidence that if released on bail the applicant would either appear, or comply with the other conditions of bail imposed on her. 6. On all that was before the Court, I have concluded that given the nature and seriousness of the applicant's diabetic illness and what its management requires, which is not being adequately attended to in custody; her personal circumstances, including her need to have access to ongoing, adequate treatment for her serious illness; her need to care for and live for her son; the very long further delay before her trial is heard; the bizarre offences which it is alleged she committed as part of a joint criminal enterprise upon her alleged victim, who on her unchallenged evidence was a former solicitor struck off for his own drug abuse, when she is alleged not only to have herself injected an unidentified drug in a syringe prepared by the victim, but then to have been present while the victim was forced by her co-accused to inject himself with that drug and having done nothing to assist the victim, other than to provide him with a bandage for his cut arm, while he was repeatedly assaulted and threatened with a gun and knives, before being bound so loosely that he was able to untie himself and escape, all the while behaving herself in an entirely irrational way; her very limited record of offending of any kind; her recognition of the very poor decisions which she made when taking the drugs which so adversely affected her; that this is her first time in custody; and the stringent bail conditions which will be imposed upon her to reside with her father, that the applicant does not pose an unacceptable risk in relation to the concerns identified by the Crown as to flight and further serious offending. 7. True it is that the place where she will be bailed to live is where she assaulted her father's former partner, an assault which resulted in a conviction and a s 9 bond being imposed upon her, it appears at a time when also drug affected. It is relevant that this relationship has ended, and it appears, otherwise on the material before the Court that the residence with her father is an appropriate one. 8. Any grant of bail cannot, of course, be guaranteed to be risk free. On this application, however, I am satisfied in light of all of the matters I have discussed, that the stringent bail conditions which will be imposed on the applicant will mean that the risk which she poses, if released on bail, will not be an unacceptable one. Conditions of bail 1. The conditions of bail imposed on the applicant are as follows: 1. To be of good behaviour. 2. To live at X XXXX XXXXXXX, XXXXXXXX. 3. To report daily to Newcastle Police Station between the hours of 8am and 6pm. 4. To appear at Newcastle Local Court on 2 December 2015 and thereafter as required. 5. Not to drink alcohol or enter any premises in which alcohol is sold except in the company of her father, Stephen Melmeth or her mother Erica Maree Johnston. 6. Not to take any illegal or prescription drugs (other than a drug prescribed to the applicant by a doctor). 7. To comply with a curfew: the applicant is not to be absent from the address at which she is required to live at XXXXXXXX between the hours of 6pm and 8am except if she is in the company of Stephen Melmeth or Erica Johnston. Otherwise she is not to be absent from that address except in their company, other than to report to police or attend court or to attend pre-arranged conferences with legal representatives or pre-arranged medical appointments. 8. Not to associate or communicate or attempt to communicate by any means (except through her lawyer) with co-accused Greg Fernando. 9. Not to contact, approach, harass or intimidate in any way (including via a third party) her alleged victim whose name is Steven Connelly. 10. Enforcement of curfew: To present herself at the front door at the direction of any police officer to confirm compliance with the curfew condition. Such direction may only be given by a police officer who believes on reasonable grounds that it is necessary to do so, having regard to the rights of other occupants of the premises to peace and privacy. 11. Enforcement of drug/alcohol abstention condition: To undertake any testing at the direction of any police officer to confirm compliance with the drug/alcohol abstention condition. Such direction may only be given by a police officer who believes on reasonable grounds that the applicant may have consumed drugs/alcohol in breach of the bail acknowledgment. Such testing may only be non-invasive and carried out with respect given to the applicant's privacy. Note 1 Prior to your release on bail you will have to sign and provide a copy of a bail acknowledgement of this decision to grant bail on the conditions I have explained and comply with all pre-release requirements. 2 If you breach any of the conditions imposed on you, you may be arrested, brought before a court or authorised justice and have your bail revoked. ********** 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: 25 November 2015