Director of Public Prosecutions (NSW) v Quinn

[2015] NSWSC 1326

Supreme Court

New South Wales

Medium Neutral Citation:	Director of Public Prosecutions (NSW) v Quinn [2015] NSWSC 1326
Hearing dates:	09 September 2015
Decision date:	09 September 2015
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Bail refused
Catchwords:	BAIL – detention application – murder – show cause offence – where respondent a quadriplegic requiring significant care – cause shown – unacceptable risk test – where respondent breached bail condition not to abuse, harass, intimidate or assault any person providing him with care – respondent highly abusive to hospital staff – difficulties regarding placement of respondent – whether respondent can be adequately managed in Long Bay hospital – unacceptable risk of respondent endangering safety of hospital staff, other patients and visitors – application granted – bail refused
Legislation Cited:	Bail Act 2013 (NSW) ss 16A, 16B, 19, 50 Crimes Act 1900 (NSW) s 23A
Category:	Principal judgment
Parties:	Director of Public Prosecutions (NSW) Michael James Quinn
Representation:	Counsel: Mr M Hobart SC (Crown) Ms J Manuell SC (Respondent)   Solicitors: Solicitor for Public Prosecutions William O'Brien & Ross Hudson Solicitors
File Number(s):	2015/256996

Judgment

1. HIS HONOUR: This is a bail detention application made by the Crown pursuant to s 50 of the Bail Act 2013 (NSW).

2. Michael James Quinn (“the respondent”), is charged with the murder of Cherie Vize, at his parents' home at Farmborough Heights, a suburb of the Illawarra region, on 22 July 2013.

3. Pursuant to s 16A and 16B(1)(a) this is a matter in which the respondent needs to show cause why his detention is not justified. The circumstances of this case are highly unusual, and that will become apparent later in these reasons. In short, I am satisfied that cause is shown, but that still requires my consideration of unacceptable risk. If there is an unacceptable risk, pursuant to s 19 I must refuse bail.

4. The Crown contends that there is an unacceptable risk of the respondent endangering the safety of individuals (s 19(2)(c)), and no submission to the contrary has been made. I am of the view that this is well established, as will become clear.

Background

5. The Crown case is that the respondent and the deceased had been in what might be described as an “on-again, off-again” relationship since about April 2010. It is the Crown case that the deceased broke off the relationship in about June 2013, but the respondent could not accept this. She started seeing another man, but at the same time expressed a wish to stay friends with the respondent.

6. He picked her up after work on 21 July 2013 and took her to his home. The following morning, in the front yard of the home, he fatally stabbed her in the neck with a kitchen knife. He then stabbed himself in the chest and neck with another kitchen knife and collapsed. He said to persons who were present, "Don't help me. I can't feel anything". When the police arrived he said, "Can you just shoot me?" The respondent is now a quadriplegic as a result of having partially severed his spinal cord.

7. The respondent was issued with a “future court attendance notice” at the Prince of Wales Hospital on 10 September 2013. He declined to be interviewed.

8. On 21 January 2015 the respondent was committed to this Court for trial. A trial was due to commence on 3 August 2015, but on 11 June that listing was vacated and the matter was stood over for mention before Johnson J, the criminal list judge, on 11 September 2015.

9. When the matter was before Johnson J on 11 June, it was anticipated that the issue at trial would be whether at the time he stabbed the deceased the respondent's capacity to understand events, or to judge whether his actions were right or wrong, or to control himself, was substantially impaired by an abnormality of mind arising from an underlying condition, and if so, whether such impairment was so substantial as to warrant liability for murder being reduced to manslaughter: 23A Crimes Act 1900 (NSW).

10. The respondent was granted bail by Schmidt J on 29 May 2014. The conditions of that bail are very strict. They are set out in a document at tab 3 of the folder of material tendered by the Crown (Exhibit A). One of the conditions of bail is that the respondent is to remain in a hospital, unless he is required to attend elsewhere for medical treatment or to attend court or to attend conferences with his legal advisors. He has been a patient at Coledale Hospital since 17 June 2014. Another condition is that he is not to abuse, harass, intimidate or assault in anyway any person providing him with care and medical attention.

11. The 3 August 2015 trial date was vacated because of a concern as to the ability of the Coledale Hospital to continue to accommodate the respondent. There were sundry related problems in identifying alternative arrangements that could be made. There was also an issue about the possibility of the respondent making an application for a trial by judge alone. Whether the trial was with or without a jury, there were issues about how it might be conducted having regard to the respondent's medical situation. In determining to vacate the trial, Johnson J referred to the challenges this matter poses to both the criminal justice system and to the public health system in this State but, understandably, he was anxious for these issues to be resolved so that the matter may progress to finality as quickly as possible.

Evidence as to placement of the respondent

12. Within the folder of documents marked exhibit A there are a number of letters, statements and reports concerning arrangements that might be made for the care, treatment and rehabilitation of the respondent.

13. The Chief Executive of the Justice Health and Forensic Mental Health Network (“JH & FMHN”), Ms Julie Babineau, has advised that her organisation has managed patients with a severe disability before, and that if the respondent came into custody it would make all reasonable and practicable arrangements to care for his condition. All efforts would be made to provide a level of clinical care equivalent, as much as possible, to the care provided to persons with similar conditions residing within the general community. Advice would be sought from the appropriate clinical and rehabilitation experts within the public health system as to the respondent's needs, and the network would work with the Prince of Wales Hospital, its acute referral hospital, to manage his clinical needs as best as practicable.

14. Ms Babineau's letter was written with cognisance of an earlier letter by Dr Jacques Ette, a staff specialist of JH & FMHN, which expressed serious concern about the ability of Long Bay Hospital to provide appropriate care for the respondent. He claims that its level of staffing, resources and expertise were simply inadequate. In making his point he itemised many issues. Towards the end of his letter he said:

"If the above points aren't able to be accommodated, it may result in the deterioration of Mr Quinn's health and possible threat to his life".

15. Dr Philip Snoyman, the Statewide Manager of Specific Needs, Corrective Services NSW, has described the respondent's condition as follows:

“Mr Quinn has no movement below his head, ongoing spasticity, which has differing severity and affecting his upper and lower limbs. He is able to move his head. Mr Quinn is completely dependent for all self-care tasks and bowel care. Mr Quinn relies on a power wheelchair, with chin control set up as his main means of mobility, and can independently use a mouth stick for iPad use, with an iPad mount and over bed table."

16. Mr Snoyman referred to difficulties in placement of the respondent elsewhere, that is, other than at the Long Bay Hospital, and referred to difficulties there as well.

17. Dr Geoff Murray, the Director of the Rehabilitation Network for the Illawarra and Shoalhaven Local Health District and Clinical Associate Professor at the University of Wollongong, provided a number of statements. In one he outlined the respondent's current needs which include that he requires two assistants and a hoist for any care that involved manual handling. He made reference to what would be required in terms of placement of the respondent, with a view to him attending court daily for his trial. In short, being at Coledale Hospital daily would pose significant difficulties because of the distance from courts in the Sydney CBD.

18. Dr Murray refers to the respondent, whilst at Coledale, frequently vocalising a desire to die. He referred to an incident in mid 2014 where the respondent exited the hospital and headed down a steep hill towards Lawrence Hargrave Drive. It is believed that the respondent was intending to kill himself by being involved in a road accident. As a result of that incident the wheelchair used by the respondent was demobilised. Dr Murray wrote:

“I firmly believe that if Mr Quinn were to be provided with a mobile wheelchair, in a community setting, there is still a risk that he will attempt to harm or kill himself and in doing so there is the real chance that other people - like motorists - will be injured in the process."

19. Dr Murray said that the respondent does not require any further rehabilitation or hospitalisation. He said that the respondent could be housed either with family, in a residential care facility, or in a disability suitable housing situation, with appropriate equipment, possibly being allowed to be alone at night and with carers coming daily. There is a problem with the respondent living with his parents in that at least one of them is a witness in the matter.    

20. Dr Murray also made reference to the incident in mid-2014, and described what happened when the respondent was returned to the hospital. He apparently reversed his wheelchair and pinned a nurse against the wall. It was said that he could have caused her significant physical injury.

21. Dr Murray refers to the respondent being highly abusive to himself (Dr Murray) and to staff and other patients. There are a number of statements from staff at the Coledale Hospital about the behaviour of the respondent at that facility. He has made unfounded allegations about Dr Murray and other staff, which caused Dr Murray to have to withdraw from involvement in his care. Two other rehabilitation specialists might have taken over such care, but their medical indemnity insurer advised them to decline. Professor Wilf Yeo has taken over supervising the care of the respondent, but it is said that this is not a sustainable long term solution. Dr Murray wrote, "Effectively the local health district may not be able to provide Mr Quinn with a doctor if he stays at Coledale Hospital".

22. Ms Ann Gilholme, the Director of Nursing and Site Manager, said in the latest risk assessment plan she had conducted, that the hospital cannot reduce the risk of harm to staff, patients, visitors and to the respondent himself any further. She said there remained a real risk of harm to such people, due to the respondent's “reckless disregard for his own health and the lives and safety of others”. He was assessed to be violent, non-cooperative, intimidating, offensive and abusive and constantly expressing a desire to kill himself. She referred to an incident of the respondent ramming his wheelchair into a nurse, pinning her against the wall; perhaps the same incident that Dr Murray was referring to. She also said that, "The respondent has some movement in his legs," and there was an occasion when she saw him tilt his chair back and kick at staff.

23. Ms Gilholme sets out various measures that have been taken to deal with the situation, such as staff not being alone, the wheelchair being demobilised, extra external security having to be hired for a period last year, staff remaining out of arm's reach unless attending to the respondent's personal care, goggles and face masks being worn by staff to protect themselves from when the respondent spits at them, and the list goes on.

24. I am not going to itemise all of the other concerns expressed by the other staff members, but the point is well established. For example, Ms Donna Jay, the Acting Nurse Unit Manager in the East Wing of Coledale Hospital described similar behaviour and said:

“The respondent remains a real risk of harm to staff, patients, visitors and himself due to his reckless disregard for his own health, and the lives and safety of others.”

25. The situation has not been confined to the time the respondent has been at the Coledale Hospital. There is a volume of material within exhibit A that indicates that while he was at the Prince of Wales Hospital, before transfer to Coledale, his behaviour was much the same.

Determination

26. There is concern about the ability of the Long Bay Hospital to appropriately manage the needs of the respondent, but it seems to me to be accepted by both parties that there is no desirable placement for the respondent, and Long Bay Hospital is the “least worst” of the options.

27. I am satisfied that there is an unacceptable risk of the respondent endangering the safety of individuals, particularly hospital staff required to provide care to him, and to other patients, and to visitors of such a facility. For those reasons the application must be granted, and bail is refused.

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Decision last updated: 10 September 2015