R v Boatswain [2015] NSWSC 1828

Supreme Court New South Wales

Medium Neutral Citation: R v Boatswain [2015] NSWSC 1828 Hearing dates: 30 November 2015 Date of orders: 30 November 2015 Decision date: 30 November 2015 Jurisdiction: Common Law Before: Campbell J Decision: Conditional bail granted: Mr Boatswain be of good behaviour; That he 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. Catchwords: CRIME – bail – applicant charged with murder of mother's friend – further release application – applicant diagnosed with terminal illness – previous Crown detention application granted by the Court of Criminal Appeal – material change in circumstances – applicant's current prognosis is in the vicinity of hours to days Legislation Cited: Bail Act 2013 (NSW) Cases Cited: Director of Public Prosecutions (NSW) v Boatswain [2015] NSWCCA 185; R v Rodney Boatswain [2015] NSWSC 878 Category: Principal judgment Parties: Rodney Dennis Botswain (Applicant) Regina (Crown) Representation: Counsel: E. Ozen (Applicant) D. Laird (Crown)

Solicitors: Legal Aid (NSW) (Applicant) The Director of Public Prosecutions (NSW) (Crown) File Number(s): 2015/349785

ex tempore judgment (revised) 1. This is a release application by Mr Boatswain who is charged with murder. The Crown case against him is that he murdered Mrs Helen Dawson by shooting her at his home in Toongabbie in November 2014. 2. The motive for the murder, although not an ingredient of the crime, is that he believed that Mrs Dawson was influential in his mother changing her will to his perceived disadvantage. 3. His case has come before the Court in respect of release and detention applications on three occasions in the last few months. In R v Rodney Boatswain [2015] NSWSC 878 Beech-Jones J, sitting as the bails judge, granted Mr Boatswain bail essentially on the basis of his then perilous medical condition. 4. Following this, the Crown made a detention application to the Court of Criminal Appeal, see Director of Public Prosecutions (NSW) v Boatswain [2015] NSWCCA 185, and the Court granted the application. 5. The reasons of the Court of Criminal Appeal were given by RA Hulme J. His Honour agreed with the assessment by Beech-Jones J of the strength of the Crown case in the following terms: the prosecution case appears to be reasonably strong but certainly not overwhelming. 1. This matter has come before me urgently today at 2 o'clock and, given the particular circumstances, I have not had the opportunity to make my own assessment of the strength of the Crown case, but I will consider myself bound by the assessment made by Beech-Jones J and RA Hulme J and I will approach the matter through the prism of that assessment of the strength of the Crown case. 2. Unsurprisingly, murder is a show cause offence and I must refuse this bail application unless Mr Boatswain shows cause why his detention is not justified before I consider any question of unacceptable risk. 3. The Court of Criminal Appeal upheld the Director's detention application in general terms, as I discussed with Mr Ozen during argument, because accepting that the Crown case was strong but not overwhelming the Court accepted, for the purpose of the detention application, the evidence in the Crown brief that the accused had made generalised threats against other persons, without naming them, whom he also believed could have had a hand in his mother changing her will, and, indeed, appeared to be very annoyed with his wife making a statement to the police because he was concerned that some of what she said may have been inconsistent with what he said. He was recorded in a telephone conversation as having told her, "Just say you don't remember, alright". 4. Moreover, the Court of Criminal Appeal was not satisfied that the conditions imposed by Beech-Jones J, stringent as they were, were appropriate given that the bail residence was to be the home he shared with his wife. Having regard to the matters I have referred to it was not thought appropriate that he reside there. 5. The substantial reason why bail was granted by Beech-Jones J was the evidence that Mr Boatswain was suffering from terminal liver cancer which had, even in July this year, metastasised into other parts of his body including his bones. 6. However, given the evidence accepted by the Court of Criminal Appeal, including the consideration that he was a man who had a history of involvement with, and access to, firearms the Court was not then satisfied that, grave as his condition was, it incapacitated him from presenting a threat to Crown witnesses. 7. At the conclusion of his reasons, with which Hoeben CJ at CL and Johnson J agreed, RA Hulme J said: 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. 1. I am satisfied that I have jurisdiction to hear this matter under s 66 of the Bail Act 2013 (NSW) and I am not precluded from hearing it by virtue of s 69. I am also satisfied that this is a matter covered by the provisions of s 75 of the Act. 2. However, to ground a further release application, it is necessary that the applicant prove that the circumstances relevant to the grant of bail have changed materially since the previous application was made or, that material information is presented this time that was not presented last time. 3. The man's disease has now progressed to the point where, according to one of his treating doctors, Dr Sarah Zardawi, an oncology registrar: [He] is now terminally ill with the prognosis of hours to days. He requires a single room for adequate nursing care. This has been arranged on Parkes 9E (rather than Parkes 4E) and I have been assured that Parkes 9E is able to provide quality end of life medical care thus removing the need to move Mr Boatswain to Parkes 4E. However I believe that it would be ideal for Mr Boatswain to be transferred out of Corrective Services custody in order to provide appropriate psychological and emotional care especially in the absence of family being able to visit him today. 1. I am informed by Mr Ozen of counsel who appears for Mr Boatswain that family are only able to visit him on 48 hours' notice while he remains in custody. 2. In a letter dated 27 November 2015, Dr David Goldstein, the oncologist primarily responsible for Mr Boatswain's treatment, had said that his life expectancy was in the order of three months. However, I accept that things have moved on in the last five days, as can happen, and that Dr Zardawi's current assessment is the correct assessment. 3. I also accept the evidence of Mr Riyad El-Choufani, solicitor employed by Legal Aid representing Mr Boatswain, that Dr Zardawi told him on 26 November that Mr Boatswain is in a very advanced stage of cancer. 4. In his letter of 27 November 2015, Professor Goldstein opined that Mr Boatswain was in such a perilous medical condition that he was not fit to stand trial because of his, inter alia, inability to instruct counsel and, because of his pain I infer, follow the course of the evidence. 5. I only mention that matter because it seems to say something at this stage about his capacity to act upon any lingering and fatal resentment he may bear the unspecified persons about whom he has uttered generalised threats in the past. 6. I acknowledge that I have received information from Detective Senior Constable Sharon Neil, the officer in charge of the investigation, and I propose to take it into account given the urgency with which this application is brought forward and given that I accept the information is reliable. 7. However, I must say, as I have remarked in the course of argument, that, so far as there is a matter that depends upon medical opinion, naturally I will prefer the evidence of the properly qualified experts to the views of non-experts in the field. 8. In particular DSC Neil has pointed out, sensibly, that if the applicant is incapacitated and needs to be transferred to Parkes 9E that could be done with Corrective Services having the facility to place a guard on his room, removing the need for him to be bailed. There is much in what she says, although I do not accept, for the reasons I have given, that no medical reason for the transfer has been given. I think that Dr Zardawi has given persuasive evidence as to why he should be moved when he is, it seems at least on the balance of probabilities, in extremis. 9. I am satisfied that the evidence of Dr Zardawi does constitute a material change in the circumstances justifying a further release application. I am also satisfied that his medical condition has progressed to the point where he has shown cause why his detention is not justified. 10. That cause is a need for him to receive appropriate nursing care as referred to by Dr Zardawi. Acknowledging the real hurt of the family victims in this case I am not of the view that two wrongs make a right (see Detective Neil's argument) and I think that the people who care for him should be allowed the opportunity of providing, and he should be given the benefit of receiving, their solicitations at the time of his death. 11. I am satisfied that the disease has progressed to that point of incapacitation referred by RA Hulme J and that he no longer poses a threat to others that the Court of Criminal Appeal was justly concerned about in July. 12. The sole condition of the grant of bail will be that he remain in such ward at the Prince of Wales Hospital as his medical advisers consider appropriate to his final treatment. 13. I grant bail on the condition: 1. Mr Boatswain be of good behaviour; 2. That he 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.