Re Robinson (Bail Application)
[2025] VSC 181
•8 April 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2025 0052
IN THE MATTER of the Bail Act 1977
and
IN THE MATTER of an application for bail by Colin Robinson
| COLIN ROBINSON |
| v |
| VICTORIA POLICE |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 April 2025 |
DATE OF RULING: | 8 April 2025 |
CASE MAY BE CITED AS: | Re Robinson (Bail Application) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 181 |
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CRIMINAL LAW – Application for bail – Violent incident in hospital - Where no criminal history or history of violence – Where evidence that violent incident took place during post-ictal delirium - Where triable issue on whether conduct was conscious, voluntary and deliberate – Where applicant more vulnerable to incarceration – Where low risk of further violent conduct - Where long-term accommodation had been secured if bail granted – Compelling reasons established – Not an unacceptable risk – Bail granted on conditions – Bail Act 1977 (Vic) ss 3AAA, 4C, 4E.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Christin Tom | Victoria Legal Aid |
| For the Respondent | Mr Matt Fisher | Office of Public Prosecutions |
HIS HONOUR:
A. Introduction
The applicant was arrested on 18 November 2024 and is charged with intentionally causing serious injury and other offences relating to an incident that took place at the Latrobe Regional Hospital on 17 November 2024. He had been refused bail by the Magistrates’ Court at Latrobe Valley. He applied, with further material, for bail from this Court. On 3 April 2025, after hearing oral evidence and argument, I granted the applicant bail on certain conditions and said that I would publish reasons. These are those reasons.
Because the applicant is charged with a Schedule 2 offence, I am required to refuse bail unless the applicant can satisfy me that a compelling reason exists that justifies the grant of bail.[1] In considering whether a compelling reason exists that justifies the grant of bail, I must take into account the ‘surrounding circumstances’.[2] The surrounding circumstances include whether the applicant would be sentenced to a term of imprisonment and, if so, whether the time the applicant would spend remanded in custody if bail is refused would exceed that term of imprisonment, the nature and seriousness of the alleged offending, the strength of the prosecution case, the applicant’s criminal history, the extent to which the applicant has complied with the conditions of any earlier grant of bail, and the applicant’s ‘personal circumstances, associations, home environment and background’.[3] If I am satisfied that a compelling reason exists that justifies the grant of bail, I must grant bail unless the prosecution establishes that there is an ‘unacceptable risk’ that the applicant would, if released on bail, commit further offences, endanger the safety or welfare of any other person, interfere with a witness or otherwise obstruct the course of justice, or fail to surrender into custody in accordance with the conditions of bail.[4] When considering whether a risk of that type is an ‘unacceptable risk’, I must take into account, again, the surrounding circumstances and whether there are any conditions of bail that may be imposed to mitigate the risk so that it is not an unacceptable risk.[5]
[1]Bail Act 1977 (Vic), s 4C(1A), (2).
[2]Ibid 4C(3).
[3]Ibid ss 3AAA, 4C, 4E.
[4]Ibid s 4E(1).
[5]Ibid s 4E(3)
B. The incident
On 14 November 2024, the applicant was admitted to Latrobe Regional Hospital to undergo surgery. The applicant has ADHD, some learning difficulties, and has long suffered from epilepsy. The applicant was ‘nil by mouth’ when he was admitted and was not administered all his usual medications. After the surgery was completed, the applicant stayed in a ward of the hospital for observation over several days. During this period of observation, the applicant suffered multiple seizures.
On 16 November 2024, the applicant is said to have been ‘increasingly annoyed’ and ‘angry’ about the time and type of medication he was receiving. The applicant did not want to stay in the ward room assigned to him, and repeatedly tried to leave contrary to the instructions of hospital staff. At 6.30pm, the applicant appears to have left his room and suffered an absent seizure, resulting in him sliding down a wall. At 8.30pm, the applicant sent a message to an aunt which read:
Scared the hospital like a lion – EVERYONE SCREAM IN WARDS- AAGGGHHHHH!!! I applied to staff and explained my anger to get it out of me. Bit hypo too. Hope their talking about me now. Might get media around now like a local legend - but they all follow me now and take pictures – hope they bum into me and be a local legend – YYYEEEEEAAAAAHHHHHH!
At 11.30pm, the applicant suffered a seizure which lasted for approximately one minute. Two nurses called a ‘Medical Emergency Team’ to assess the applicant. At 11.50pm, the applicant was assessed to be ‘normal’ and was left in the care of the two nurses. The applicant was seen to be tossing about in his bed. One of the nurses requested the applicant to stop, due to concerns about his intravenous (‘IV’) treatment being removed. He was then heard ‘swearing and muttering to himself’.
At 12.01am on 17 November 2024, about 30 seconds after this interaction with the nurse, the applicant is said to have run out of his room holding a metal IV bag holder and yelling at the nurse. He threw the metal holder at the station where the two nurses were seated, and it hit the nurses’ computers. The applicant yelled ‘You fucking bitch’ at the two nurses. The two nurses began running away from the applicant, calling out for help. The applicant caught up with one of the nurses and, it is alleged, used his right fist to strike the nurse in the back of the head. The nurse fell to the ground and was unconscious. The applicant is then alleged to have sat on the nurse and repeatedly struck her upper body and back, causing her head to bounce off the floor. As a result of the injuries sustained during the attack, the nurse required ‘layers of stitches’ to treat a laceration she received to the top of her head. She also suffered fractures to two vertebrae and to ‘multiple ribs’. She has also, of course, suffered emotionally.
The applicant chased a second person, before he calmed down and was escorted back to his ward room by the Medical Emergency Team and security personnel. Around this time, the applicant is said to have stated ‘That’s my mother in the corridor. We had an altercation about two weeks ago’. A short time later, the applicant was arrested by Victoria Police and taken to Morwell Police Station. There, he was deemed to be unfit for interview.
C. The defence and evidence of Associate Professor Darjee.
There is no real doubt that the applicant inflicted serious injuries on the nurse.[6] The issue is whether the prosecution can prove that the accused did so consciously, voluntarily and deliberately. A forensic psychiatrist, Associate Professor Rajan Darjee, opined in a 31 March 2025 report that at the time of the incident the applicant was in a state of ‘post-ictal delirium’ and ‘lacked conscious awareness of his circumstances’ and was ‘not able to act in a conscious and deliberate way’ and that he ‘clearly did not have the capacity to form intent at the time of the alleged offending’. Associate Professor Darjee also gave oral evidence before me to the effect that:
[6]I am using the word ‘serious’ here in its lay sense, not meaning to foreclose any argument about whether the injuries inflicted, or any injuries intended to be inflicted, meet the definition of ‘serious injury’ in s 15 of the Crimes Act 1958 (Vic).
(a) He has reviewed the applicant on three occasions, twice in person and once by audio-visual link, and reviewed the medical material;
(b) Delirium is a well-known phenomenon experienced by patients in hospital wards that can cause patients to be violent and to assault nursing staff;
(c) The pattern of behaviour exhibited by the applicant on this occasion indicated he was suffering from delirium at the time of the incident. In particular, his fluctuating in and out of lucidity or ‘clouding of consciousness’ and the sudden on-set of overwhelming rage that later suddenly ceased, were typical features of delirium;
(d) Nothing a person says while they are experiencing delirium is reliable, and their attempts afterwards to explain their actions are also unreliable as they are in truth trying to reconstruct memories in circumstances where no memories have been laid down;
(e) An episode such as that under consideration here could happen to ‘any one of us’ if we were admitted to hospital with a severe infection and fever;
(f) This episode of delirium arose in a particular set of circumstances where the applicant had not received his usual medication, had elevated pH in his blood due to vomiting and diarrhoea, had inflammation in his bowel, and had a blocked bowel. He described it as a ‘severe and atypical’ episode; and
(g) The applicant presented a low risk of reoffending because he had no risk factors save for this episode and, in particular, he had had thousands of seizures, including several since this episode, without becoming violent or experiencing delirium. It was ‘highly unlikely’ that the applicant would ever go into such a state again. Further, in terms of the applicant’s taking of his medication, he was a ‘rigid’ person who was likely to continue to take it. And I note, as Associate Professor Darjee pointed out, this was consistent with the applicant’s taking exception at the hospital to his not receiving his medication while an inpatient awaiting surgery.
Associate Professor Darjee impressed me as a witness and for the purpose of this application I accept his evidence.
Counsel for the applicant pointed out that the onus to establish the necessary mens rea was on the prosecution and that the hand-up brief had been completed without any expert evidence to the effect that the applicant was acting consciously, voluntarily and deliberately and contended that I should therefore approach this application on the basis that the prosecution case is weak. I am not prepared to do so. Associate Professor Darjee’s report was obtained shortly before the application for bail. It may be that the prosecution will obtain a report that says something very different. All I can say, on the material put before me, is that there is at the very least a triable issue as to whether the prosecution will succeed and there is at least a reasonable prospect that the applicant will be found not guilty.
D. The applicant’s personal circumstances
The applicant is 42 years of age. He is currently unemployed and is in receipt of the disability support pension through Centrelink. He is in the process of applying for support from the National Disability Insurance Scheme (‘NDIS’).
The applicant has no criminal history. The current period of remand is the first time the applicant has been incarcerated. The applicant says that, while on remand, he has been ‘bullied, stood over and harassed’. He says that there have been instances where he was not provided with his epilepsy medication, and that Corrections Victoria did not classify him as a person with an intellectual disability until 22 January 2025. This had the effect that the applicant was not relocated to the specialist disability unit within the gaol until 28 January 2025.
Prior to his arrest, the applicant resided with his mother and assisted in providing care to her. After being charged, and because the applicant’s anger appeared to be directed at his mother, the Informant applied for an interim family violence order which was put in place and names the applicant’s mother as the protected person and prevents the applicant from being within 200 metres of her. Accordingly, if bail is granted, the applicant will not be able to return to live with his mother at least if this order remains in place. The applicant has, however, been assessed by the Court Integrated Services Program (‘CISP’) Remand Outreach Program. It has recommended that he be case managed within the Latrobe Valley CISP program. It reported that emergency accommodation could be provided for the applicant for the night of 3 April 2025 in the event that he were granted bail. I was told, and both counsel accepted, that CISP was not in a position to arrange accommodation beyond that date unless or until bail is granted, and that it would be appropriate to determine the application on the assumption that CISP will be able to continue to provide emergency accommodation in the event that bail is granted.
The applicant also has the support of two of his siblings, Ms Brooke Youl and Mr Michael Robinson, who are said to be willing to assist the applicant to attend appointments and to apply for the NDIS if bail is granted. Prior to being remanded, the applicant had been suffering from depression and was engaged with a psychologist, Mr Gary Lawler. If bailed, the applicant proposes to continue seeing Mr Lawler for treatment.
E. The grant of bail
As noted above, I granted bail on 3 April 2025. I consider that there were compelling reasons that justified the grant of bail, having regard to the facts that there are triable issues and it may well be that the applicant did not have the necessary mental state for him to be found guilty, the trial will probably not be until the second half of next year, the applicant by reason of his intellectual disability will struggle more than most in custody, the applicant has no criminal history and no history of violence, the incident took place where, on the material before me, the applicant was experiencing an episode of delirium that is unlikely to recur and the applicant otherwise poses a low risk of reoffending.
I also considered that the risk that the applicant might, if released on bail, commit a Schedule 1 or Schedule 2 offence, endanger the safety or wellbeing of any other person, interfere with a witness or fail to surrender into custody was acceptable. In reaching this conclusion I accepted and acted upon the evidence given by Associate Professor Darjee that the applicant, notwithstanding this single violent episode, posed a low risk, and the fact that he otherwise had no history of violence or criminal behaviour. I considered it necessary, however, that the applicant attend his doctor regularly so that his mental state and medication intake may be monitored and if he becomes unwell it is picked up promptly. Also, I accepted that persons who work at the Latrobe Regional Hospital might be distressed in the event that the applicant appears there, and that the applicant should not be able to attend there unannounced.
Accordingly, I granted bail on conditions that the applicant:
(a) Attend his treating general practitioner Dr Kingsley, or another practitioner at the Central Family Practice, twice weekly and take any prescribed medication and follow any lawful directions of his treating medical practitioners;
(b) Reside at accommodation as directed by CISP;
(c) Comply with all lawful directions by CISP;
(d) Notify the Informant of the address at which he is residing and any change to that address as soon as possible;
(e) Not contact any witnesses of the prosecution except for the Informant and any family members;
(f) Notify the Informant as soon as possible in the event that he intends to attend Latrobe Regional Hospital;
(g) Comply with all active Family Violence Intervention Orders;
(h) Not leave the State of Victoria;
(i) Not attend any points of international departure; and
(j) Attend the Latrobe Valley Magistrates’ Court on 12 August 2025 at 10.00am and there surrender himself into custody and not depart without leave of that Court and if leave is given return at the time specified by that Court and again surrender himself into custody.
Finally, I also determined that it was appropriate that the applicant appear before me again for judicial monitoring on 29 April 2025 at 9.30am, so as to ensure, principally, that he had secured appropriate accommodation and was complying with the condition that he attend twice each week on his general practitioner, and made an order to that effect.
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