R v Boatswain [2015] NSWSC 1828

Procedural Posture

Release Application / Bail Application in Murder Proceedings / Further Release Application After Previous Crown Detention Application Was Granted by the Court of Criminal Appeal

Legal Issues

1. 1 ['Whether the applicant had established a material change in circumstances or new material information sufficient to ground a further release application.' 'Whether the applicant had shown cause why his detention for a show cause offence was not justified.' "Whether the applicant's terminal medical condition had progressed to a point of incapacitation such that previously identified bail concerns no longer justified detention." 'Whether bail conditions requiring residence in a hospital ward for palliative care adequately addressed the remaining concerns.']

Ratio Decidendi

The updated evidence from Dr Zardawi that the applicant was terminally ill with a prognosis of hours to days and required appropriate end of life nursing, psychological and emotional care constituted a material change in circumstances. His disease had progressed to the point of incapacitation contemplated by the Court of Criminal Appeal, so he had shown cause why detention was not justified and no longer posed the threat to others that had previously justified detention. Conditional bail requiring him to remain in the ward at Prince of Wales Hospital considered necessary by his treating doctors was therefore granted.

Court Disposition

Conditional bail granted.

Orders

• ['Mr Boatswain be of good behaviour.' 'That he reside at all times, and not absent himself from, such ward at the Prince of Wales Hospital as Professor Goldstein and Dr Zardawi consider necessary for his proper palliative care.']