Murcott v The State of Western Australia
[2004] WASC 285
MURCOTT -v- THE STATE OF WESTERN AUSTRALIA [2004] WASC 285
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 285 | |
| Case No: | INS:207/2003 | 14 DECEMBER 2004 | |
| Coram: | MILLER J | 14/12/04 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application for bail granted | ||
| A | |||
| PDF Version |
| Parties: | ANNETTE JOY MURCOTT THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Wilful murder Bail application Whether extremely exceptional circumstances made out Applicant suffering breast cancer Whether need to be with family to improve chances of survival |
Legislation: | Nil |
Case References: | Lim v Gregson [1989] WAR 1 WCVB v R (1989) 1 WAR 279 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Wilful murder - Bail application - Whether extremely exceptional circumstances made out - Applicant suffering breast cancer - Whether need to be with family to improve chances of survival
Legislation:
Nil
Result:
Application for bail granted
(Page 2)
Category: A
Representation:
Counsel:
Applicant : Mr M I Crispe
Respondent : Mr T B L Scutt
Solicitors:
Applicant : Max Crispe
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Lim v Gregson [1989] WAR 1
WCVB v R (1989) 1 WAR 279
Case(s) also cited:
Nil
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1 MILLER J: This is an application for bail pending trial for wilful murder. The applicant is charged on an indictment which alleges that 2 March 2003 at Port Hedland, she and Robert Edward Johnston wilfully murdered Bevan Michael Anderson. The application seeks an order for bail: "so that [the applicant] can humanely receive urgent medical treatment including chemotherapy, surgery, and radiotherapy."
2 The case against the applicant is that she was responsible for procuring the killing of Anderson and that she was present at the time, and/or that she aided Johnston in the homicide. The evidence reveals that on 3 March 2003, two officers of the South Hedland police station were on duty on the Great Northern Highway when they stopped a vehicle driven by Johnston. It appears that he was breathalysed and recorded a very high blood alcohol reading. As a result, inquiries were made as to what he had in his vehicle. A body was found and it was the body of the deceased. It also appears that Johnston said, "You've caught me," or words to that effect, and that he was on his way to bury the body.
3 The applicant, was travelling in convoy with Johnston when he was apprehended. Consequently, one can see that the case against her indicates that she was involved in the homicide. To what extent, of course, would depend upon the evidence as led and as accepted.
4 The applicant is charged with wilful murder, the most serious offence known to our law, and in circumstances which people are rarely granted bail. She has been in custody since May 2003, some 19 months to date. A trial was listed for Broome on 8 November 2004 but had to be vacated because of the applicant's health and her capacity to stand trial. I have medical reports which indicate that she was diagnosed in November with a six-month history of an enlarging breast mass and she that has stage 3 breast cancer and her prognosis is not good.
5 Dr David Ransom, of the Department of Medical Oncology, Royal Perth Hospital, has reported that with the combination of chemotherapy, radiotherapy and surgery, the applicant is likely to have an approximately 50 per cent 10-year survival rate. It was put lower in an earlier report from Dr Ewing from the breast clinic at Royal Perth Hospital, who said she had a five-year survival rate of between 25 and 50 per cent. However, I take Dr Ransom's assessment as the more authoritative prognosis. In any event, it is a very poor prognosis for a woman in her early 30s.
6 The applicant is going to require six cycles of chemotherapy. Each of these will take two to three hours by way of intravenous infusion. Each
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- treatment will cause side effects which are detailed: nausea; vomiting; hair loss; mouth ulcers; diarrhoea and depletion of white cells with the white cell count being at its lowest 10 to 14 days after the beginning of each cycle. Once that is completed, breast surgery is planned three to four weeks after the last chemotherapy session. Following surgery the applicant will require radiotherapy for five or six weeks. It appears from Dr Ransom's report that in total her treatment will be six to eight months from November 2004. This means the treatment is expected to be completed by 1 July 2005.
7 Dr Ransom has expressed the view that the diagnosis of a life-threatening disease is a major event in anybody's life. It is particularly unsettling when the patient is young and in prison. Sometimes patients become depressed at the prospect of such lengthy treatment and it takes fortitude to keep attending the appointments. Obviously the risk of depression is higher in the applicant's case. Dr Ralph Chapman, who gave evidence here this morning, agreed generally with those propositions. Dr Ransom suggests that the management of her side effects in Bandyup Prison may be a problem and, with that, Dr Chapman has joined issue. It seems to me that there is no doubt she can be properly managed medically in Bandyup Prison, but more importantly, Dr Ransom has indicated that her optimal management would be best facilitated if she could live with her parents. He says: "I believe we would have better control of potential side effects in the flexibility of a home environment and also she would have better psychological support through this difficult time".
8 This is the current state of the medical evidence. Dr Chapman has confirmed that the applicant is presently in the infirmary at Bandyup Prison where she has been the only occupant until recent days. In the infirmary, she appears to have hospital facilities. She has meals there, has her medication there and has the opportunity to spend time in the crisis care unit. However, this unit appears to have been set up for people likely to harm themselves or people with mental problems, which does not seem to be the most desirable place for her given her likely unstable psychological condition.
9 On the other hand, the applicant has psychiatric and psychological assistance available and counselling which she has availed herself of it. She can go out into the canteen and recreation centre for two hours a day and she can make telephone calls. She will be able to make an application to leave the infirmary if she wishes after a cycle of chemotherapy, and any such application will be by the medical authorities.
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10 The question which I have to consider is whether the applicant can show extremely exceptional circumstances which would justify a grant of bail. In WCVB v R (1989) 1 WAR 279, Ipp J made it clear that in cases of wilful murder, extremely exceptional circumstances must be shown before bail will be granted.
11 In Lim v Gregson [1989] WAR 1, Malcolm CJ pointed out (at 12-13) that wilful murder is a capital offence and the task of showing exceptional circumstances is more difficult because of the strength of the inference that a person charged with a capital offence would be likely to abscond.
12 There are many other cases to which reference has been made which indicate that generally, because of the seriousness of the offence, people will not be released when charged with wilful murder unless extremely exceptional circumstances are shown. That is the question which arises in this case.From a purely medical point of view the applicant can be properly treated within the prison environment. However, holistically, as Dr Chapman put it, she would be emotionally and socially better off with her family. Her life expectancy is certainly compromised as it is. Based on the medical information, the fact is that even with the best treatment she only has a 50 per cent, 10-year survival rate at her age,. This is a very bleak prognosis.
13 Nobody wishes to see the prospects of their life limited. Life is precious. It seems to me on balance, that rather than risk compromising an already poor prognosis for life, the applicant shows extremely exceptional circumstances which would justify her release on bail, to enable her family to give her all the assistance that could be given to her to help her go through the treatment, the surgery and hopefully to survive.
14 In those circumstances it is a very close decision but it seems to me that bail should be granted. I note that the State did not take a view for or against. Dr Chapman was very fair in his assessment because he put it purely from a medical point of view. She is alright where she is but he appreciated and accepted that in the best of all worlds she would be better with her family.I know it is not just a question of giving her the best of all worlds but it is a question of giving her every chance to live and in those circumstances I think she should be released on bail for a period.
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15 I would release her on bail on these terms and conditions: a personal undertaking in the sum of $50,000; surety in the sum of $50,000, to be approved by a justice of the peace; reside at 27 Lansdowne View in Bridgetown save when required to travel to Perth for treatment where she is to reside at 13 Burlinson Court, Koondoola; report to the Bridgetown police station Monday, Wednesday and Friday of each week at a time to be set by the officer-in-charge, except when travelling to Perth, in Perth or returning from Perth; advise the officer-in-charge of the Bridgetown police station of each proposed trip and its duration; remain at home between 8 pm and 7 am. I should not think that would be a hardship to her given her state, but I do not want her out in the streets in Perth or Bridgetown at night.
16 The applicant should answer to her bail before me on 1 August 2005.
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