Bail Act 1982 (WA)

Prisons Act 1981 (WA), s 38, s 39

1 This is an application for bail on behalf of Austin Edward Dodd who is accused of wilfully murdering Dianne Kaye Thomas on 21 July 2002. That simple sentence however conceals a complexity in the application unique in my experience. The background I take from the statement of material facts and these are the allegations made against Mr Dodd. During the afternoon of Sunday, 21 July 2002, it is believed that Dodd attended at the address of the deceased, Thomas, in Norcott Vista, Marangaroo. Dodd left his own vehicle at the house and in company with Thomas appears to have left in a red Nissan Pintara.

2 At approximately 6 pm a friend of Thomas's spoke with her by mobile telephone. She stated that she was with Dodd who wanted to kill himself because he was going to gaol. About 9 pm Thomas rang her friend and said she was on Gnangara Road and heading to drop Dodd off. Somewhere prior to 9.15 pm Thomas, while in the Nissan Pintara, was shot twice in the head by Dodd using a .22 calibre Ruby Extra revolver and a .45 calibre Norinco pistol. At about 9.15 pm Dodd and the deceased Thomas were travelling in Wanneroo Road north, Dodd driving and the deceased in the front passenger seat.

3 Dodd approached the intersection of Hastings Street with Wanneroo Road still travelling north. He shot himself once under the chin in an upwards direction. He used the .45 calibre Norinco. The round caused extensive damage to the front of Dodd's head. The round exited his skull through the roof of the vehicle. As a result of that shot Dodd sustained injuries including palate and tongue damage, cheek bone, sinus and nasal injuries, severe eye damage, factures to his skull and damage to the front section of his brain. He lost control of the vehicle which veered into a street sign by Hastings Street.

4 Upon arrival by members of the public and police Dodd was holding the .45 calibre Norinco pistol in his lap pointing towards Thomas. When it was removed from him he began to ask for it back. Thomas was pronounced dead at the scene.

5 The applicant Dodd was conveyed to Joondalup Health Campus and subsequently transferred to Sir Charles Gairdner Hospital and is now in Royal Perth Rehabilitation Unit. The applicant has been in that unit for some time under the care of Dr Kim Fong, a specialist in rehabilitation medicine.

6 Dr Fong has provided a medical report and, at short notice, has made himself available today to give evidence before me this afternoon. The injuries sustained by the applicant have caused irreversible brain damage to the frontal lobes and probably to the other parts of his brain. His prognosis is poor and his life expectancy measured is in weeks or months. He is in a near vegetative state having undergone a progressive deterioration. He has no consciousness of his environment. At present he is in what Dr Fong describes as a fragile state of health. It is likely that in his weakened condition he may contract a chest infection or other potentially life threatening illness.

7 Dr Fong and his team are committed to providing the applicant with full supportive treatment and to keeping him comfortable. However, he has been having frequent periods of cessation of breathing for up to 40 seconds, presumed to be related to extensive brain damage. I gather that in the normal course Dr Fong would consult his patient's family about their wishes concerning resuscitation and active treatment. However, this case is not normal.

8 The applicant is accused of a most serious crime and is in the legal custody of Mr Alan Piper, the Director General of the Department of Justice, under s 16 of the Prisons Act.

9 The Director General is under a duty to ensure that medical care and treatment is provided to prisoners. While the Director General has indicated that he will consult with the applicant's family, any decision to be made while the applicant remains in detention must be that of the Director General.

10 I am advised that the Director General is still obtaining advice on his legal duties and responsibilities in the present situation. It is in these circumstances that Mr Huggins, on behalf of the applicant, has moved for an order that this Court grant bail essentially so that the applicant can be removed from custody and his family can participate in decisions about his future. To a degree this is a technical removal because the fact is that he will continue to remain where he is in the rehabilitation unit. Mr Huggins was propelled to this course, as he deposes in an affidavit sworn this morning:

"Mr Peter Beasley of the Ministry of Justice telephoned me on 21 November 2002 with a request that Mr Dodd be urgently listed in the Perth Supreme Court for a bail application. The information conveyed to me by Mr Beasley (and subsequently by Ms Kim Doyle, also of the Ministry of Justice) was to the effect that Mr Dodd's treating physicians wanted to withhold any further attempts at resuscitating Mr Dodd in the event of life threatening complications arising from his injuries. The Ministry of Justice's position was that it was not appropriate for them to consent to this course of action - rather it was a decision for Mr Dodd's family to make. I was further informed the Ministry of Justice would support an application, on humanitarian grounds, that Mr Dodd be released from custody. ..."

The position of the Director of Public Prosecutions

11 When this matter came before me this morning the Crown, represented by Ms Forrester, sought an adjournment until Monday 25 November 2002 because of the speed with which the matter had come on and because of the need which the Crown had to investigate the matter more fully. Although I was sympathetic to that request, because of the urgency of the matter, I adjourned the application only until this afternoon.

12 This afternoon Ms Forrester has provided considerable assistance with submissions. She has been in discussion with the Acting Director of Public Prosecutions, Mr Simon Stone, who is sympathetic to the request from the family but needs time to consider the Crown's position. Importantly, he needs to consult with the victims of the alleged offence, Mrs Thomas's two children aged 18 and 23.

13 The Acting Director's position is understandable and appropriate. His view is important because one way of achieving the outcome which the applicant's family desires is by a withdrawal of the charges. That is a grave step and the discretion to do so is a matter for the Acting Director of Public Prosecutions, not for this Court, and so I leave that option entirely out of account.

14 Another option is for the family to make application to the Guardianship and Administration Board for the appointment of a guardian. Mr Huggins tells me that he has made inquiries but, even with expedition, a decision is unlikely before Monday or Tuesday, perhaps later.

15 This afternoon Mr Bastow was granted leave by me to appear on behalf of the Department of Justice. He called Ms Kim Doyle, the Manager of Sentence Management for the Department of Justice, to give evidence. She indicated that the department's policy for terminally ill persons had changed under this government. The former government used to manage these matters closely. The present government adopts a more relaxed stance. The department therefore has apparently prepared Prisons Policy Directive No 8 entitled "Prisoners with a Terminal Illness".

16 The status of this policy is unclear to me. The Director General does not appear to have yet given it authority. I understand he is considering it. The directive was tendered in evidence and purports to be made under the Prisons Act, s 38 and s 39. Mr Bastow was unable to provide me with any assistance as to the head of power under which such a policy might be made. In the limited time I had available I could not identify a head of power under the Prisons Act. Certainly it does not seem to be that which is purported, namely s 38 and s 39.

17 The procedure in this draft Prisons Policy Directive laid down for remand prisoners states in part:

"The Bail-Coordinator will liaise with the prisoner's legal representative(s), court and family members with a view to:

• Securing a suitable surety if bail is already set.

• Facilitating an application for bail/home detention (monitored) bail, if remanded in custody.

• Where bail has been denied, facilitate an appeal on behalf of the prisoner against the decision.

• When a surety has been refused, facilitate an appeal on behalf of the prisoner against the decision.

• Liaising with the Victim Support Service to ascertain any victim issues and/or concerns."

18 This, at first glance, appears to be a remarkably interventionist role for a bail coordinator in the Department of Justice. It is upon the basis of the draft Prisons Policy Directive, judging from Mr Huggins' affidavit, that this application appears to have been made after the approach of the Department of Justice. In the light of all these circumstances, that the applicant now applies for bail.

The legal principles: Need for exceptionality

19 Under the Bail Act the applicant has a right to have his eligibility for bail considered by the Supreme Court and is brought before this Court as soon as practicable. Because of the state of his injuries it has not been in fact practical for the applicant to appear to date, and indeed has not appeared personally today. This is, therefore, his first application for bail. Considering the grant of bail for wilful murder the Full Court in Lim v Gregson [1989] WAR 1 held:

"... The circumstances would have to be extremely exceptional before a grant of bail could be made on a murder charge before committal ..."

20 I refer to the judgment of the Chief Justice at 13. The exceptional circumstances which may be required should not be regarded as a closed list. See R v Kleinert (1928) 49 ALT 137. Mr Huggins argues, and I paraphrase, that by any measure these circumstances are exceptional and that bail should be granted.

21 Mr Huggins acknowledges that there are some practical difficulties in the way, one of which being, of course, that the applicant cannot enter into a bail undertaking. This might be overcome, he suggests, by dispensing with the requirement for bail. Whether there is power to dispense with an undertaking is a real issue. Section 28(1) of the Bail Act mandates that a person shall not be released on bail without giving an undertaking.

22 However, the first focus of attention must be whether the circumstances are exceptional. There are some features to be considered, including the strength of the Crown case. If the Crown adduces evidence in accordance with the statement of material facts, the Crown case could be regarded as very strong. Another factor is the risk of flight. There is no risk that the applicant, if granted bail, would abscond. In fact, as I have said, there would be no physical change in the applicant. He would continue to reside at the rehabilitation unit, it would appear, in an unconscious or comatose state.

23 The exceptional circumstances are the physical condition of the applicant, which are of course linked with the humanitarian desire for his family to make decisions on his behalf at a point when he is in extremis.

24 This of course has nothing to do with a right to live or a right to die. It simply reflects the consultative process in which Dr Fong would, by his evidence, engage were the applicant not in custody.

25 Acknowledging that the categories of exceptional circumstances are not closed, nevertheless I do not consider that the present facts properly fit the description. In my judgment it would be a distortion of the principles underlying the grant or refusal of bail to grant bail in these circumstances. The position in which the applicant now finds himself appears to have been brought about entirely by his own actions, the consequences of which are that he is now unable to exercise any choice. Someone else must decide all questions for him.

26 I understand and deeply sympathise with the applicant's family who wish to exercise that power on his behalf. However, the Director General, Mr Alan Piper, is required to exercise a choice for the applicant in the overall best interests of the applicant. There is no evidence to suggest that the Director General will do otherwise. The applicant's own actions have brought about a situation where he faces the prospect of dying in custody, though unconvicted of any crime.

27 The law should not be distorted to give effect to a Department of Justice unauthorised draft Prisons Policy Directive that prisoners in the last stages of their life may be provided the dignity of a non-custodial death through sentence management. I am not persuaded that these circumstances, unique though they are, constitute exceptional circumstances within the meaning of the law such as to enable me to grant bail and therefore the application is refused. I would like to thank counsel for their assistance.