Supreme Court of the Australian Capital Territory; Case Title:; In the matter of an application for bail by Slobodan; Novakovic (a.k.a. Daniel Noland) (No 3); Citation:
[2022] ACTSC 292
•21 September 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of an application for bail by Slobodan Novakovic (a.k.a. Daniel Noland) (No 3) |
Citation: | [2022] ACTSC 292 |
Hearing Date: | 16 September 2022 |
DecisionDate: | 21 September 2022 |
Before: | Refshauge AJ |
Decision: | The Court orders that Slobodan Novakovic (a.k.a. Daniel Noland) be granted bail from today, 21 September 2022, until 14 October 2022 at 2:30 pm, to be released from the Alexander Maconochie Centre into the presence of his mother, Vicki Dockery, on the following conditions: 1. That he reside at 29 Blackwood Terrace, Holder in the Australian Capital Territory during the bail period. 2. That, subject to conditions 5, 8 and 11, he remain at his place of residence and not leave it, other than in the case of an emergency, except to attend medical appointments or appointments with ACT Corrective Services, or to report to Woden Police Station as required under condition 8, in which case he is to travel directly to such appointments or reporting from his place of residence and return directly to his place of residence after the conclusion of such appointments or when he has reported. 3. That, at any time during the bail period, other than when he is absent in accordance with conditions 2, 5, 8 or 11, he present himself to the front door of his place of residence if requested by a member of the Australian Federal Police. 4. That he accept the supervision of the Commissioner of ACT Corrective Services or his delegate and obey all reasonable directions of the person supervising him. 5. That, despite condition 2, he may either deviate from direct return to his place of residence or leave his place of residence if required to comply with any direction of the person supervising him in accordance with condition 4 or to comply with any reasonable requirement for medical treatment as recommended by any medical or health professional treating him, in which case he is to travel by direct route to comply with any such direction or requirement and return to his place of residence directly upon completion of it. 6. That he not consume alcohol, cannabis, illegal drugs, or any prescription medication not prescribed for him. 7. That he submit to urinalysis, drug testing or breath analysis if directed by the person supervising him under condition 4, or when required by any member of the Australian Federal Police. 8. That he report to the officer in charge of Woden Police Station every Monday, Wednesday and Friday between the hours of 8:00 am and 8:00 pm. 9. That he not provide any medication prescribed to him to any other person other than his mother, step-father or a registered medical practitioner or registered pharmacist. 10. That, within two business days from his release from custody, he provide to the person supervising him under condition 4 a copy of all current prescriptions issued to him by a medical practitioner and, within two business days of being issued them, any further prescriptions issued to him by a registered medical practitioner during the bail period. 11. That, despite condition 2, he be permitted to attend a Centrelink office, a branch of the Commonwealth Bank of Australia, National Australia Bank or the Bendigo Bank and a chemist conducted by a registered pharmacist, so long as he is and, for the entire visit to any of these locations until he returns to his place of residence, remains in the company of his mother, Vicki Dockery. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Bail – Application for Bail – Medical Condition – Continuing Hardship – Risk of Being in Custody – “Prison Code” – Bail Granted |
Legislation Cited: | Bail Act 1992 (ACT) ss 9D, 20B, 20C Corrections Management Act 2007 (ACT) ss 9, 12 Evidence Act 2011 (ACT) ss 4, 190 |
Cases Cited: | A v Attorney-General [2020] NZHC 3401 Asfour (1992) 60 A Crim R 409 Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290 |
Parties: | ACT Director of Public Prosecutions Slobodan Novakovic (a.k.a. Daniel Noland) ( Offender) |
Representation: | Counsel S Whitfield ( Crown) C Duffy ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Numbers: | SCC 44 of 2022 SCC 45 of 2022 |
Refshauge AJ
Introduction
Daniel Noland (his preferred name, as explained in R v Novakovic (a.k.a. Noland) (No 1) [2021] ACTSC 62 at [2]) has applied for bail under s 20B of the Bail Act 1992 (ACT).
The application is made in a context which makes this application somewhat complex. Much of that context, including recent history, is set out in In the matter of a bail application by Novakovic (a.k.a. Noland) [2022] ACTSC 73 (First Bail Decision) when the Court revoked an earlier grant of bail. It is not necessary to set out here that background that is there included (at [6]–[24]). The matters have, however, been taken into account.
The bail application was supported by an affidavit made by his solicitor, which was read by the Court. Apart from setting out a brief description of his recent hospitalisation, it annexed the discharge summaries from then and set out proposed conditions for bail. In addition, an email from Mr Noland's mother was also annexed. None of the contents of these documents were challenged.
Just before the hand down of this decision, further documents were tendered without objection. They included a letter from Mr Noland and a letter from the ACT Human Rights Commission. That latter letter was dated 15 September 2022.
The letter from Mr Noland went into some detail about his experience in becoming ill in the Alexander Maconochie Centre and his treatment in hospital and then, when returned to the Alexander Maconochie Centre, in the Alexander Maconochie Centre also. Many of the assertions in it might be called tendentious but, nevertheless, they do indicate that he has had significant pain and confirm the oral evidence that he gave about his situation in the Alexander Maconochie Centre.
Mr Noland also gave oral evidence on the application, as he had done before. It is not necessary to set that out either, save where relevant to the consideration of particular issues, though all of his evidence has been taken into account. As noted above, some of his oral evidence was repeated in the letter that was tendered immediately the delivery of these reasons.
The application
The application is made under section 20B of the Bail Act and there was no suggestion that any particular test, such as the requirement for special or exceptional circumstances before bail be granted under s 9D, was required.
Nevertheless, as noted above (at [2]), an earlier application in relation to bail had been made and his bail revoked. Though the application for revocation was opposed, that was not an application within the meaning of s 20C of the Bail Act. It probably was a review of bail expressly excluded from that section. In any event, if that is wrong, there has been a change in circumstances of Mr Noland and fresh evidence before the Court.
In brief, on 12 January 2021, when he was sentenced for an offence of aggravated burglary, a Drug and Alcohol Treatment Order was made for Mr Noland for 13 months and 18 days, until 1 March 2022. He proceeded in the Programme to Phase 3, despite some challenges. Things, however, did not continue well.
10.Unfortunately, Mr Noland failed to complete the program at Canberra Recovery Services which he had been directed to complete under the Drug and Alcohol Treatment Order. He did not graduate from the Order when it ended. He is alleged to have, in the meantime, committed offences of burglary, theft and possession of a drug of dependence on 6 January 2022. He has pleaded guilty to these offences and is awaiting sentence. He was granted bail on 7 March 2022 to continue with his rehabilitation, pending sentence.
11.As set out in the First Bail Decision, that bail was revoked when he was discharged from the Canberra Recovery Services program on 31 March 2022, to which he had been bailed to attend, and he was remanded in custody.
12.On 14 July 2022, however, Mr Noland was admitted to The Canberra Hospital because of acute chronic lower back pain. Magnetic Resonance Imaging scanning showed disease of his nerve roots due to right nerve compression by a bulging disc in his spine. The pain was difficult to manage and, because of that, it was decided to refer him for further consideration when the pain was better managed. Despite an epidural steroid injection, there was limited movement a week later.
13.There were discussions about the effect of restrictions in custody at the Alexander Maconochie Centre and it seemed to be agreed that acute surgical intervention was not warranted. He was taken off all opioids and commenced on other pain medication, Suboxone and Amitriptyline, which markedly better controlled the pain.
14.It was noted that he also suffered from tooth pain, the result of multiple tooth abscesses, but without signs of infection.
15.He was referred to the University of Canberra Rehabilitation Hospital. On discharge from The Canberra Hospital he was being prescribed 13 medications, including those referred to above.
16.On 16 August 2022, he was admitted to the University of Canberra Rehabilitation Hospital, where he was referred to the Pain Team, though analgesia was managing his pain well. He made satisfactory progress with physiotherapy, which it was recommended that he continue, though it was uncertain whether that was possible at the Alexander Maconochie Centre. There was no evidence as to whether that uncertainty has been resolved. He had independent “in bed mobility”, but with walking assistance. That required a single point walking stick.
17.Mr Noland was discharged from the University of Canberra Rehabilitation Hospital on 2 September 2022. The Discharge Summary recommended that he should be followed up by the Pain Management Unit and that a “home exercise plan [was] to follow”. There was no evidence of whether that occurred.
18.The other follow up was the need for clinical psychology, drug and alcohol therapy, and attention by the Pain Team, specifically Dr Watson, though there was no evidence of who that was. The Discharge Summary showed that the hospital was aware that Mr Noland was in custody, as the Hume Medical Centre was identified as the recipient of the summary, but, curiously, where it was stated “Discharged To” the notation was “Not specified”. Mr Noland's address was stated as at the Alexander Maconochie Centre.
19.Most troubling was the “Complete List of Medications on Discharge”. There were 25 medications listed. That is a frighteningly long list. Some were of medications that have caused difficulties in the Drug and Alcohol Sentencing List, such as Suboxone and Pregabalin.
20.A closer inspection of the list showed that there appeared to be multiple inclusions of the same drug, but did not seem, for example, to show the different times in the day that the particular drug was to be taken. So, Baclofen, a muscle relaxant, appeared four times in the list. On two occasions it showed “Dose: 15 mg in the Morning (08:00) every day”. For another two occasions it showed 10 mg to be taken “Twice Daily (14:00, 20:00) every day”. The discrepancy and overlap was unexplained. For others, the identical directions were given on each entry. Accordingly, there are only 12 different medicines on the list, a reduction in those with which he had been discharged from The Canberra Hospital.
21.In her submissions, Ms C Duffy, counsel for Mr Noland, informed the Court with no challenge that Mr Noland was no longer taking five of the medications, leaving only seven medications to be taken.
22.Mr Noland, in his oral evidence, identified some of the problems he faced in custody. He said that he was experiencing difficulties as his medical condition meant that he could not do a number of everyday things, such as cook for himself or carry toiletries to the shower. He was currently using a walker to assist his mobility and he could not take it into the shower, so it would not help with this. This also meant he was unstable when he went to the shower, though he did not say that he had fallen to date. The showers had no handrail, which made him vulnerable. This evidence was not the subject of challenge in cross-examination. It was also repeated in some detail in the letter that the Court received.
23.He also gave evidence that he lived in a situation where stronger detainees preyed on weaker detainees and he was at risk of having his walking stick or his walker taken. He was also at risk of being assaulted or pushed over. It appears that it had happened, but the evidence was a little unclear.
24.This was challenged by the Crown on the basis that Mr Noland had not complained to the prison authorities. He agreed that he had not complained, but said he feared to do so as that would leave him exposed to retaliation. There is a recognition by the courts that there is what is regarded as a prison code (see R v Johnson, Sonnet & Paisley [2001] VSCA 242; 126 A Crim R 395 at 398–9; [11], R v Alexanderson [1996] QCA 41; 86 A Crim R 77 at 80, and Asfour (1992) 60 A Crim R 409 at 411) which strongly inhibited the “telling of tales” about other detainees. This is a reasonable explanation for not reporting such incidents, especially for an experienced prisoner, as Mr Noland is.
25.Given the milieu in prison, this evidence shows that Mr Noland is both vulnerable to being preyed on by other detainees and faces likely problems from his medical condition. The latter consists in the lack of appropriate facilities for him to shower and to cook.
26.The Crown submitted that Mr Noland's version, not being corroborated, for example, by report or complaint, should not be accepted. That challenge must be rejected because Mr Noland’s account is explained by the significant likelihood of a prison code of the kind that would inhibit reporting of incidents suffered and likely to be suffered by Mr Noland, given the recognition of its widespread existence.
27.The Crown noted that Mr Noland could be marked as a prisoner at risk. That, however, was not further explained as to how it might ameliorate the risks that were described by Mr Noland.
28.The risk of falling, given Mr Noland’s inability to use a walker or stick in the shower, is a matter of concern. It is correct that the prison authorities have a responsibility to care for detainees (see ss 9 and 12 of the Corrections Management Act 2007 (ACT)), but this is of little comfort should they fail or be unable to do so (New South Wales v Bujdoso [2005] HCA 76; 80 ALJR 236; A v Attorney-General [2020] NZHC 3401).
29.Of course, it cannot be accepted that all risks must and will be eliminated, but specially vulnerable detainees must be the subject of careful consideration. It was submitted by the Crown, without challenge, that the prison had arranged for Mr Noland to be transported to hospital when his pain became acute. There is no reason to believe that they would not do the same again, as necessary, if bail were refused. Nevertheless, Mr Noland is experiencing difficulties in carrying out ordinary activities of living in custody, especially in mobility care, while rehabilitation for his medical condition is a hardship.
30.Mr Noland's mother, in her email, described the facilities available at her home. She noted that the house has a rail in the toilet and the bathroom and that she is able to provide the cooking and washing of his clothes that Mr Noland needs. She works only one day a week at other premises and, therefore, would be at home each day except for that one day. There was no challenge to this evidence. There were suitable facilities for Mr Noland to complete any exercise regime.
31.Hardship to an applicant for bail is relevant to the consideration of such an application. That can support a grant of bail; indeed, it may even rise to the extent of special or exceptional circumstances (Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290 at 302; [67]). To rise to the level of special or exceptional circumstances, however, they must be “very special or unusual”.
32.In this case, the circumstances do not need to be special or exceptional.
33.A number of cases have shown that disability leading to hardship can support a grant of bail (Bogers v State of Western Australia [2017] WASC 244 at [114]–[127], R v Lombardi [2013] SASC 61; 115 SASR 577 at 584; [24], R v Hoang [2015] ACTSC 195 at [7]).
The Crown further submitted that the prison was in a better position to administer Mr Noland's somewhat complicated medication. There was, it was put to Mr Noland, who agreed, a medical practitioner on staff at the Centre. There was, however, no evidence to suggest that Mr Noland's mother could not supervise the delivery of medication, though it seems likely that he himself would have greater access to the medication than in custody. On the other hand, he has been taken off the opiates and the number of medications has been reduced. It was not submitted that any of the medications posed a particular threat of misuse, given their nature, such that they would be likely to be disposed of without authority, or otherwise abused.
35.The Crown also criticised the lack of specific medical material to enable a careful assessment to be made of the risks, or to show the definite situation. This was clearly so; it would often be required that a proper medical report should be available to the Court so that it could make an informed decision. While judicial notice and common sense are available to courts (Scanlan's New Neon Ltd v Toohey’s Ltd (1942) 43 SR (NSW) 2 at 14–15), there are limits to this and the Court should be vigilant not to extend that capacity beyond that which justice will bear.
36.Nevertheless, in this case, the Court had regard to the two discharge summaries, which show a significant disability suffered by Mr Noland, and his physical situation in the Court, including his need for the walker. The difference between his mobility now and when he was being regularly seen by the Court while subject to the Drug and Alcohol Treatment Order is significant, and notice can be taken of that by the Court.
37.That, of course, does not mean that there was medical material on which the Court could make any finding about his likely progress of his rehabilitation. As the Crown properly submitted, it would be quite inappropriate for bail to be granted to a date quite uncertain of any ascertainment such as “until Mr Noland has been rehabilitated”. Ms Duffy did, however, point out that bail could be granted for a limited period, to be reviewed. That does rather beg the question of how the Court could then determine when Mr Noland had sufficiently recovered to justify the end of the grant of bail so as to avoid inappropriate risk and hardship.
38.The Crown further submitted that the Alexander Maconochie Centre was well placed to respond to difficulties. It could do so in this case were he, for instance, to relapse in his condition, as it had done originally. Thus, he had been conveyed to hospital when his medical condition became apparent. There is no evidence to suggest that this is better or more beneficial than what his mother would be able to do were she, as proposed, to be his primary carer.
39.Relevant to this is the Crown's submission that the Alexander Maconochie Centre is well able to administer Mr Noland's medication and, indeed, also well placed to prevent its illegal use, such as by diversion to other use.
40.There is no evidence to suggest that the prescribed medication is apt to be misused. The medical authorities, as noted above, were aware that he had alcohol and drug issues. Further, he has ceased use of opiates, the most likely medication to be misused. There is no evidence available from the supervision of Mr Noland by the Court under the Drug and Alcohol Treatment Order to suggest that he has misused prescribed medication. Given the absence of evidence that any of the prescribed medication is apt to be misused, it is not clear that this can affect the decision.
41.Further, while the Alexander Maconochie Centre can formally control the dispensing of the medication, so can Mr Noland's mother. The Centre would presumably have the medication locked up between the time of dispensing and further use, an inference that the Court can draw. No such inference can properly be drawn from the circumstances with which Mr Noland will live while on bail.
42.As noted above (at [34]), however, there is no evidence that any of the prescribed drugs are apt to be misused, nor that Mr Noland has done so in the past. Further, Mr Noland's limited mobility strongly suggests that he would be unable to go into the streets and distribute them. He will, one can infer, have access to a telephone and could invite others to attend the house to receive such drugs, but that is a matter of speculation. The medical opinion is that he needs these drugs for his rehabilitation and, given that pain and lack of mobility are the major symptoms to be addressed, it appears that such diversion, at least while he is as incapacitated as he currently is, is quite possible, but so unlikely that the risk is not one that should deny him bail if it is otherwise appropriate.
43.The Crown relied on what had been said by the court in the First Bail Decision at [38] namely:
Mr Noland has now on two occasions shown that he has the capacity to remain committed to his rehabilitation and to remain drug free and crime free. What he wanted to show in the recent period on bail, namely that he is ready for further rehabilitation that, despite his assertions, he had not yet successfully completed, has not been shown. Thus, there would be a greater risk of further offending when he is in the community without the supervision and monitoring of custody, a residential drug rehabilitation program or even an intense period of day or “outpatient” community rehabilitation programs.
44.The present application is, however, somewhat different, since it is designed to minimise risks and hardship and not to show his capacity to rehabilitate. His medical condition has placed him in this situation and there is, at least on the evidence, some question about whether that can be appropriately moderated in the Alexander Maconochie Centre. It is also relevant to know that, after the quote above the Court added (at [39]):
While not necessarily a bar to further bail, the apparent anomaly, however, of him failing in a residential programme and then being allowed the greater freedom and lack of supervision in the community needs to be addressed
45.This provides a somewhat different context for the current bail application.
46.Not without some hesitation, the risks of Mr Noland's medical condition and circumstances in custody, which expose the vulnerability of his condition to a significant degree, in this case justify the grant of bail.
Conditions of bail
47.Ms Duffy had, in her affidavit, proposed some conditions. No objection to them was raised by the Crown. The Crown did, however, propose two additional conditions which Ms Duffy advised the Court that she had instructions to accept. These were a condition that he provide details of his medication to ACT Corrective Services and a condition that he report regularly to Woden Police Station.
48.In addition, a further requirement, which is strictly not a condition of bail, but an indication of the future progress of this matter, will be made as well.
49.Bail applications, reducing time in custody, which, in circumstances such as this, may result in the avoidance of harm of various kinds, often lead to inadequate evidence in the usual admissible form being presented to the Court. This is, curiously, contrary to the requirement of s 4(1)(a) of the Evidence Act 2011 (ACT), which, in practical terms, seems a curious provision in itself, especially in light of the provision of s 4(2) of that Act. No doubt, s 190 of the Evidence Act will frequently be used, either expressly or implicitly, to permit evidence not strictly complying with the rules of evidence to be admitted.
50.Nevertheless, if appropriate time is available then both the interests of justice and compliance with the Evidence Act requires that those rules be applied.
51.In this case, it seems that if the bail granted today is to be extended, then a proper report by an appropriate medical professional, whether registered medical practitioner or other registered health professional such as a physiotherapist or an occupational therapist, should be made available to the Court to satisfy the need to show that continuing hardship or risk persists to justify continuing bail.
52.Mr Noland’s mother gave an undertaking to the Court that she would advise police if Mr Noland, to her knowledge, left his premises or, when outside the premises in her company, left her company.
53.The Court orders that Slobodan Novakovic (a.k.a. Daniel Noland) be granted bail from today, 21 September 2022, until 14 October 2022 at 2:30 pm, to be released from the Alexander Maconochie Centre into the presence of his mother, Vicki Dockery, on the following conditions:
1.That he reside at 29 Blackwood Terrace, Holder in the Australian Capital Territory during the bail period.
2.That, subject to conditions 5, 8 and 11, he remain at his place of residence and not leave it, other than in the case of an emergency, except to attend medical appointments or appointments with ACT Corrective Services, or to report to Woden Police Station as required under condition 8, in which case he is to travel directly to such appointments or reporting from his place of residence and return directly to his place of residence after the conclusion of such appointments or when he has reported.
3.That, at any time during the bail period, other than when he is absent in accordance with conditions 2, 5, 8 or 11, he present himself to the front door of his place of residence if requested by a member of the Australian Federal Police.
4.That he accept the supervision of the Commissioner of ACT Corrective Services or his delegate and obey all reasonable directions of the person supervising him.
5.That, despite condition 2, he may either deviate from direct return to his place of residence or leave his place of residence if required to comply with any direction of the person supervising him in accordance with condition 4 or to comply with any reasonable requirement for medical treatment as recommended by any medical or health professional treating him, in which case he is to travel by direct route to comply with any such direction or requirement and return to his place of residence directly upon completion of it.
6.That he not consume alcohol, cannabis, illegal drugs, or any prescription medication not prescribed for him.
7.That he submit to urinalysis, drug testing or breath analysis if directed by the person supervising him under condition 4, or when required by any member of the Australian Federal Police.
8.That he report to the officer in charge of Woden Police Station every Monday, Wednesday and Friday between the hours of 8:00 am and 8:00 pm.
9.That he not provide any medication prescribed to him to any other person other than his mother, step-father or a registered medical practitioner or registered pharmacist.
10.That, within two business days from his release from custody, he provide to the person supervising him under condition 4 a copy of all current prescriptions issued to him by a medical practitioner and, within two business days of being issued them, any further prescriptions issued to him by a registered medical practitioner during the bail period.
11.That, despite condition 2, he be permitted to attend a Centrelink office, a branch of the Commonwealth Bank of Australia, National Australia Bank or the Bendigo Bank or a chemist conducted by a registered pharmacist, so long as he is and, for the entire visit to any of these locations until he returns to his place of residence, remains in the company of his mother, Vicki Dockery.
[His Honour then spoke directly to the participant]
54.Mr Noland, this has been a long and complicated exercise. I accept that you are in a position where your rehabilitation and your medical situation justifies you being granted bail and continuing outside the Alexander Maconochie Centre. But it is with very strict conditions. They are complicated, although at bottom they are pretty obvious. You live at Blackwood Terrace, you stay there unless you are either at certain specified locations with your mother, or you are doing what the Court, a Corrections Officer or a medical practitioner tells you to do. That is the bottom line.
54. If you do that, we will review the situation and see how you are going, but as I said to your mother, and I am sure you heard it, at the end of the day this is not general bail, it is bail because of your physical condition and there will be a time when you may have to go back to the Alexander Maconochie Centre, either pending sentence or following sentence for the serious offences you have committed.
55. So that has got to be crystal clear to you and if you are not able to comply with these conditions, well, the Court has got no alternative but simply to put you back in custody and hope that the eventualities, which I have accepted are a real risk, do not occur.
| I certify that the preceding fifty-five [55] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Refshauge. Associate: Date: 27 October 2022 |
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