Re Dalton
[2013] VSC 738
•19 December 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. SCR 2013 0165
IN THE MATTER of an application for bail by Paul Dalton
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JUDGE: | MACAULAY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 December 2013 | |
DATE OF JUDGMENT: | 19 December 2013 | |
CASE MAY BE CITED AS: | Re Dalton | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 738 | |
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CRIMINAL LAW – Bail – Application for bail – Applicant charged with murder – Bail sought in order to obtain medical treatment – s 47(1)(f) of the Correction Act 1986 considered – Bail not generally to be used for the purpose of enforcing rights owed by prison authorities under the Corrections Act 1986 – No exceptional circumstances – Application refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Colin Mandy | Michael Gleeson & Associates |
| For the Prosecution | Ms Jane Warren | Office of Public Prosecutions |
HIS HONOUR:
Paul Dalton, aged 44 years, is charged with the murder of Robyn Michelle Hall on or about 19 December 2012 at Cape Woolamai in Victoria. He was arrested and charged with the murder of the deceased on 28 January 2013 and has been in custody since that time. He now applies for bail.
Bail shall not be granted to a person charged with murder unless a judge of the Supreme Court is satisfied that exceptional circumstances exist which justify the making of such an order.[1]
[1]Bail Act 1977, s 14(2).
A combination of factors and matters can give rise to ‘exceptional circumstances’. In Re Kane, [2] Lasry J set out a number of principles, particularly applicable to this case, which I gratefully adopt:
[2]Re Kane [2010] VSC 8.
In R v Moloney,[3] Vincent J said:
[3]Re Moloney, John Denis (Bail Application) [1990] VSC (Unreported, Vincent J, 31 October 1990) 1-2.
A number of decisions which have been handed down by judges in this Court, however, make it clear that such circumstances may exist as a result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.
In DPP v Sabino Cozzi,[4] Coldrey J expressed agreement with the approach of Vincent J in Moloney and reviewed several of the cases which subsequently discussed the meaning of “exceptional circumstances”. He noted:
[4][2005] VSC 195.
An examination of the cases bearing upon this concept reveals a multitude of single and conflicting interpretations thrown up, no doubt, by the variety of fact situations with which Judges have been faced.
His Honour went on to refer to a variety of circumstances which had been found in various cases to constitute exceptional circumstances and summarising those to which his Honour referred they included:
• the strength of the Crown case;
• the question of delay;
• strong family support;
• stable accommodation;
• availability of employment;
• low risk of flight or re-offending;
• lack of prior criminal history; and
• the personal situation of the applicant.
As King J noted in R v Griffey:[5]
... it has long been held that it is the combination of circumstances that are of importance and that the combination must be assessed in each individual case.
[5]R v Griffey [2010] VSC 86.
The applicant contends that there are exceptional circumstances which justify the granting of bail. He relies upon a combination of the following:
•The Crown case against the applicant is circumstantial and weak.
•He made no admissions, is pleading not guilty to all charges and is a person who has no prior convictions.
•He has a growing basal cell carcinoma on his left arm, and two broken wisdom teeth, neither of which conditions are getting proper treatment in prison.
•Delay in the hearing of the trial, now fixed for hearing on 2 June 2014.
In addition, he claims to have stable accommodation and family support, work available to him pending trial and a partner who is in fragile health and heavily dependent on him for emotional and financial support. It is said that because of his ties to the jurisdiction with family and employment, and his antecedents, he is not a flight risk. It is also said that conditions attached to the bail would reduce any perceived risk. No surety was proffered in the written material but counsel for the applicant said in court that there was a surety available.
The application for bail is opposed. In addition to pointing to evidence that it says shows the case to be strong against the accused, the Crown contends that none of the circumstances put forward are exceptional. Further, it says, at least in affidavit material that has been filed, that the applicant presents an unacceptable risk of offending while on bail, interfering with witnesses and obstructing the course of justice.
The applicant has been in custody for just under 11 months. No application for bail was made at any of his appearances in the Melbourne Magistrates’ Court: at filing hearings or at the contested committal in early September 2013. Nor was any application for bail when made at the directions hearing in the Supreme Court on 25 September 2013 when his trial was fixed for 2 June 2014.
His trial could have been heard on 28 April 2014 but, without any objection being made on his behalf at the directions hearing, the trial was pushed back to 2 June 2014 to suit the convenience of prosecuting counsel.
Crown case
The circumstantial evidence against the accused includes the following, some of which, of course, is contested:
•Ms Hall appears to have disappeared after 19 December 2012 and has not been seen since.
•He was the last person seen with the deceased, having stayed with her for several days at 91 Lantana Road, Cape Woolamai between 15 December and 19 December 2012.
•In that time he had a disagreement with her because she revealed to his wife, through her former partner, that he and she had a sexual relationship.
•Forensic evidence of blood stains gathered from various locations at the house at Woolamai, including from his motor vehicle, points to violence having occurred to Ms Hall at the house and that her injured body was moved into the applicant’s vehicle.
•On 20 December the applicant replaced some decking boards on the veranda of the Cape Woolamai house, and that the discarded decking boards, discovered behind the garage, had blood stains on them.
•He initially sought to cover up, or omitted to mention, having replaced the decking boards.
The applicant made no admissions. He is contesting the charge and is presumed innocent.
Ms Hall was a nomadic person, with a well known drug habit and her body has not been found. She had a recent boyfriend, said to have a violent disposition.
There are, essentially, two issues: is Robyn Hall dead and if so, did the applicant cause her death (ie with the intent to kill her or cause her really serious injury).
Notwithstanding that the Crown case is circumstantial, on the information as presently available I do not consider it could properly be described as a weak case. Indeed, if the forensic evidence is not shaken, it may be said to be a strong circumstantial case.
Access to medical treatment
The affidavit of Louise Dempsey filed in support of the application for bail exhibits a number of documents which appear to demonstrate that, as a result of a biopsy carried out in late February 2013, the applicant was diagnosed as having a basal cell carcinoma on his arm. Although there is recommendation for surgical removal of the basal cell carcinoma, the applicant is still awaiting that surgical removal and there is no evidence of him having been booked in for its excision.
Ms Dempsey deposed:[6]
On 1 March 2013 the applicant attended the medical clinic at MRC [Melbourne Remand Centre] that confirmed the biopsy and the lump being BCC – “plan to await surgery appointment”.
On 2 April 2013, the medical staff further noted a “large BCC” on left elbow requiring surgery and unable to be conducted at MRC.
The lump is yet to be removed. To my observation in early December, it appears to be spreading with a second lump appearing. I am instructed that my client has been told from time to time that surgery is “booked” but a date for excision is yet to be provided and one cannot be confirmed.
[6]Affidavit of Louise Patricia Dempsey sworn 9 December 2013, [39]-[41] (exhibit references omitted).
The latest information from the medical file set out in the affidavit is dated April 2013. This was explained by Mr Mandy of counsel, appearing for the applicant, because the information comes from the medical file records obtained in May 2013. No further medical evidence or medical records have since been obtained.
As well as his basal cell carcinoma, the applicant has two broken bottom wisdom teeth that require removal because of their proximity to the nerve. He has been told from time to time that surgery is booked but not date has been confirmed.
Prisoners of the Crown have enforceable rights to medical treatment: see s 47(1)(f) of the Corrections Act 1986. Although it is of concern that a basal cell carcinoma has not been treated as recommended for a long period of time I am not in a position to determine whether the prison authorities are failing to provide proper medical treatment. But if they are, that is a matter which ought to be agitated as a matter or urgency.
I was invited to view the applicant’s wound, and I did so. There is no doubt it is ugly and obvious. Beyond making that observation I am unable to determine what that means or what to make of it. Seeing it just highlights the need for medical evidence and the difficulty in resolving the adequacy of medical treatment on a bail application. This was a point emphasised by Maxwell P (Charles JA agreeing) in Re Rigoni,[7] a case also concerning a bail application grounded on inadequate medical treatment in prison. After recognising prisoners’ rights to adequate and appropriate medical care in custody, his Honour continued:
…If, as is suggested in some of the material, the facilities made available for the medical and psychological care of prisoners are said to be deficient in some respect, that is not a matter which this Court can ordinarily investigate on a bail application. A court of law is peculiarly unsuited to evaluating the adequacy of the treatment of a particular person having a particular condition, whether medical or psychological. Whether the care in a particular case is adequate or not is a matter for expert opinion. Accordingly, in my view, it would be a rare case indeed in which this Court would come to the view that the standard of medical care provided to a person in custody fell so far below what was required as to warrant a grant of bail pending appeal where bail would not otherwise be granted.
... As I have said, this Court would only intervene on a medical issue where there was such obvious neglect of the human rights of the prisoner - that is to say, of his entitlement to adequate and appropriate medical care - that intervention by means of a bail order was justified
[7][2005] VSCA 325 [5]-[6].
Appropriate treatment is or should be available to Mr Dalton while in prison. If access to necessary treatment for the preservation of health is not being provided, steps can be taken to enforce rights.[8] Bail is not the appropriate remedy – at least not in the first instance - to correct the denial of such access if that is the case.
[8]See Weaven v Secretary, Department of Justice [2012] VSC 582.
There is no evidence of what, if any, steps the applicant has taken to agitate – either himself or through his legal representatives - for proper medical treatment for either of his two conditions. There is no evidence of what is the real explanation for the delay – simply that there is a delay.[9] Nor is there evidence, if the applicant is released on bail, of what type of treatment he would seek, from whom, or that he has a better prospect of faster or superior treatment on bail than in prison.
[9]The Crown said that because of the late notice of the application, it has not been able to subpoena the applicant’s medical records to ascertain any explanation or other information.
Beyond these considerations, the fact that the prisoner has a basal cell carcinoma that may require surgical excision, and broken wisdom teeth that require removal, does not amount to an exceptional circumstance which would justify the granting of bail.
Partner’s health and other personal circumstances
Moving to other matters, whilst it is a matter of regret that the applicant’s partner is suffering distress and adverse health due to his incarceration, that fact does not advance the applicant’s the overall situation to one of exceptional circumstances.
The applicant argues that because he has job available with a plasterer, no prior convictions and strong family ties, he does not pose any risk of flight or of offending. In oral submissions the availability of employment was downplayed as a consideration for the grant of bail due to the discovery of certain matters about the prospective employer.
Risk of offending or interfering with witnesses
Although giving less weight to these matters in oral submissions, the Crown’s written material suggests that the applicant’s release would pose an unacceptable risk that, under the stress of his pending trial, he would resort again to drug use, particularly given that he apparently suffers a significant depressive illness. Under that influence, the Crown argues he poses an unacceptable risk of, perhaps, interfering with witnesses or at least putting them in fear of him doing so.
Also, given that the deceased’s body has not been found, the Crown is concerned about a risk he will take some steps in relation to the deceased’s remains, thereby obstructing the course of justice or ultimately, denying the deceased’s family the chance her body will be found.
Without further evidence about the alleged depression and effects of drug use it is difficult to place too much reliance upon those arguments. But I do take note of the evidence that the applicant and Ms Hall were users of methylamphetamines, so to a point there is some foundation for the Crown’s apprehensions.
The deceased’s family strongly opposes bail and have expressed fear about the prospect of his release.
Delay
The applicant has been incarcerated now for nearly 11 months. But for the slight delay to the trial mentioned earlier, it would now be about 4 months to his trial. With the delay, it is just over 5 months away. The applicant did rely on delay as a factor in favour of bail, relying upon what was said in R v Cox.[10] Authorities in the past have gone in different directions in relation to the significance of ‘delay’ in the hearing of a charge of murder as an exceptional circumstance for bail.[11] In any event, I do not consider that a delay of 15 months for the trial of a murder charge (ie calculated to 28 April 2014 when this court would have heard the case but for the agreed extension) is an inordinate delay or that, in combination with other factors, a delay of that length creates an exceptional circumstance.
[10][2003] VSC 245.
[11]Bourke’s Criminal Law Victoria (LexisNexis, electronic version as at 19 December 2013) [220,020.10] ‘Restriction on the right to bail’.
Conclusion
In the result, the apparent risk posed to the applicant’s health from the basal cell carcinoma is of greatest concern. I would expect that the prison authorities are properly cognizant of, and will give effect to, the applicant’s right to reasonable medical care and treatment for the preservation of his health, as legislated for by s 47(1)(f) of the Corrections Act. If it appears that those rights are being ignored, then perhaps bail will need to be the answer.
For now, taking account of all the matters put forward in evidence and argument, I am not persuaded that taken in combination and viewed as a whole they amount to exceptional circumstances so as to justify the applicant’s release on bail. For these reasons I do not need to canvas further the issues of flight risk, or of other risks, or of any conditions that might be considered to meet those risks.
The application is refused.
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