R v Rodney BOATSWAIN

The Crown Case (ss 18(1)(b) & (c))

1. The Crown placed before the Court a detailed statement of facts describing the Crown case and the police investigation. I will summarise so much of that statement that identifies matters said to connect Mr Boatswain to Ms Dawson's death.
2. The Crown alleges that Mr Boatswain murdered Ms Dawson because he had a long simmering but unfounded belief that Ms Dawson was somehow responsible for Mr Boatswain's mother, Rita Boatswain, altering her will unfavourably to him. The statement of facts describes a substantial body of evidence which supports the fact that Mr Boatswain held this grievance, including his own admissions, although it must be noted that he has consistently denied any involvement in Ms Dawson's death. Of itself, the existence of a motive to kill is never sufficient to establish a prima facie case, although in combination with other circumstances it may be particularly damning. In this case the existence of a motive has more force than would usually be the case because the circumstances of Ms Dawson's peaceful life make it difficult to conceive of anyone who would have wanted to cause her such harm, given that her death occurred in circumstances where apparently no robbery was involved.
3. In the immediate aftermath of Ms Dawson's death the police spoke to two neighbours who relayed their observations of the evening of 19 November 2014. One neighbour is reported as stating that he saw a maroon Toyota Camry sedan, similar to that owned by the deceased, reverse from Ms Dawson's driveway 15 to 20 seconds after a loud bang was heard. Another neighbour is reported as stating that he saw a champagne coloured Camry enter the driveway immediately prior to hearing a loud bang. The facts suggest some doubt as to the capacity of that second neighbour to make an observation from his vantage point, although I understand that contention is disputed.
4. The significance of at least one of the neighbour's observations is that Mr Boatswain is the registered owner of a 1999 maroon Camry. The investigating police have obtained CCTV footage which traces the movements of a maroon Toyota Camry on the evening of the shooting. This vehicle was seen to approach in the vicinity of Ms Dawson's house just prior to the suggested time of the shooting and leave that vicinity soon after. The registration number of the vehicle is the same as Mr Boatswain's, except one letter and one number are different. The Crown alleges that the footage shows that there has been deliberate alteration of the registration number with black tape. Black tape was later found at Mr Boatswain's home. The Crown contends that a visual examination that was conducted of the registration plate on Mr Boatswain's vehicle reveals "distinctive scratches consistent with an attempt to trim tape with a sharp implement to ensure the width is consistent with the other numbers and letters on the plate".
5. The Crown statement of facts also asserts that there exists expert evidence that supports the contention that the plates on Mr Boatswain's vehicle were altered by the use of tape to show the registration number depicted in the CCTV footage I have described.
6. Further, the Crown contends that an intercept of conversations on the telephone between Mr Boatswain's daughter and mother reveal knowledge by them that Mr Boatswain's vehicle was used in connection with the murder. Exactly how these conversations can be used as evidence against Mr Boatswain at his trial is unclear.
7. Mr Boatswain has been interviewed by the police on a number of occasions. In those interviews he has made various admissions including that he held a grudge against Ms Dawson, that at one point he considered harming Ms Dawson and that the vehicle depicted in the CCTV looked similar to his. However, as I have said, Mr Boatswain has repeatedly denied any involvement in Ms Dawson's death.
8. Finally, it should be noted that in a document entitled "bail profile" that was tendered on this application and prepared by the investigating police it is asserted that in December 2014 Mr Boatswain told a co-worker, apropos of nothing, that "I've shot someone and I thought I would have been caught by now".
9. What I have recounted is a précis of the evidence said by the Crown to point to Mr Boatswain's responsibility for Ms Dawson's death. On this point it is difficult to know how much weight, if any, can be attached to the evidence of the co-worker. The alleged conversation does not appear to have been raised with Mr Boatswain in any of his interviews with the police.
10. Otherwise the Crown case is clearly circumstantial but that does not mean that it could not be described as strong. Ultimately it is difficult to assess the strength of the Crown case without conducting a more detailed inquiry into the material and evidence available concerning Mr Boatswain's car and its movements as well as scrutinising the evidence given by Ms Dawson's neighbours.
11. At this point the best I can do is conclude that the Crown case appears to be reasonably strong but certainly not overwhelming. In stating that it must always be remembered that the Crown has to prove its case beyond reasonable doubt.

Mr Boatswain's Health (s 18(1)(k))

1. It is common ground that Mr Boatswain was diagnosed with liver cancer in May 2014. A report dated 13 March 2015 reveals that he was assessed as being not suitable for "resection or transplant". Instead he is being treated with "trans-arterial chemo-embolisation". This form of treatment is said not to be a cure. Instead, the report states that the "disease process is likely to be life limiting for him", that being an obtuse way of saying that his condition is terminal.
2. No report specifically addressing his life expectancy has been tendered on this application. However, according to the report just noted the approximate figure for a cohort of patients undergoing chemo-embolisation is 80% of patients survive at one year after treatment commences, 41% of patients survive at three years, 19% of patients survive at five years and 13% of patients survive at seven years. It has been one year since Mr Boatswain started his treatment. Clearly these figures suggest that the likely period of his survival is relatively short.
3. A recent report reveals that his condition is worsening. A large metastasised deposit was noticed that was not present in January 2015. Further, a report from JusticeHealth was tendered on the application which states that, while in custody, Mr Boatswain is being "treated adequately" and that arrangements to transfer him to "palliative/terminal care" are in place if needed. The fact that such arrangements are in place reveals an acceptance that time is running out.

Other matters

1. It is necessary to describe the other material that was tendered on the bail application. First, the material reveals that Mr Boatswain has agreed to lodge his interest in a property he owns with his brother as security for his bail. Mr Boatswain's brother, Maurice Boatswain, has sworn an affidavit stating that he is agreed to such security being provided. The property has an estimated value of $842,000.
2. If bail is granted the relevant condition will specify that Mr Boatswain agree to forfeit an amount if he does not appear and then require this security to be lodged in support of the agreement. Given that the Crown case is that the origin of his grudge concerns his inheritance, Mr Boatswain's agreement to forfeit the property is of some significance.
3. Second, apparently Mr Boatswain is illiterate so the preparation of his case for trial will be very difficult if he remains in custody (see s 18(1)(k)).
4. Third, a committal hearing has been fixed for 25 September 2015. It seems likely that any trial of Mr Boatswain will take a number of weeks. I have no doubt that, if Mr Boatswain is committed for trial, this Court will expedite any trial given Mr Boatswain's health issues. That said, after allowing for the committal process to be completed, it is difficult to see Mr Boatswain obtaining a trial before the middle of 2016 (s 18(1)(h)).
5. Fourth, the police bail report referred to earlier described the alleged actions of Mr Boatswain's daughter in attempting to influence witnesses while he is in custody. This is curious in that the defence contended that Mr Boatswain's daughter is the source of the material in the police brief which is adverse to him. Overall, her actions are neutral to this bail application. Whether or not she is interfering with witnesses appears to be unrelated to whether or not Mr Boatswain remains in custody. The relevant point to note is the police material does not demonstrate that there is any evidence that any risk to witnesses would materially increase from Mr Boatswain's release.
6. Fifth, the police submissions are replete with contentions that Mr Boatswain poses a threat to others and contend the fact he is suffering from a terminal illness is a factor heightening the prospect of him doing so. One can appreciate the logic of this contention, but no evidence is cited to support it. The Crown case accuses Mr Boatswain of giving effect to a long held grudge against a specific person in a planned manner. It does not accuse him of carrying out a suicidal mission intending to harm any person he might encounter or with whom he might have some disagreement.

Has Mr Boatswain shown cause?

1. As previously indicated, the first step in the process of determining the bail application is to ask whether Mr Boatswain has shown cause why his detention is not justified. Notwithstanding the gravity of the allegation against Mr Boatswain and my assessment of the strength of the Crown case, I am satisfied that he has shown cause.
2. All questions concerning bail ultimately involve an assessment of the risk of some adverse outcome of one kind or another materialising in the future. In this case the Court has the benefit of statistics to assist at least one part of that analysis. Those statistics suggest that the likelihood is that Mr Boatswain will die perhaps either before his trial or within a reasonably short period thereafter.
3. Mr Boatswain is innocent until proven guilty. In the absence of some compelling circumstance suggesting that a person should be detained, the detention of a person presumed innocent in the knowledge that there is a likelihood that they will die before their trial, or shortly afterwards, is blatantly unjust.
4. I will address the bail concerns that arise in relation to Mr Boatswain shortly, but suffice to state at this point that no such compelling circumstance is proven in this case.

Is there an unacceptable risk

1. The next step is to determine whether there are bail concerns that arise in relation to Mr Boatswain's release and whether those concerns are such that they give rise to an unacceptable risk of one of those concerns materialising.
2. I accept there is a risk of Mr Boatswain not appearing at court but I consider that it has a relatively low chance of materialising. As I have said, Mr Boatswain is 64 years old. He has spent most of his life in New South Wales. He owns property here, and his wife, daughter and sister live here. He is dying. He remained in this State for a number of months knowing that he was a suspect in a murder investigation. In my view the relatively small risk that he will abscond before his trial is one that can be sufficiently mitigated to an acceptable level by the imposition of conditions.
3. The remaining risks identified by the Crown are the risk of Mr Boatswain interfering with witnesses and the risk of him committing a serious offence if he is released.
4. I have already adverted to the various matters affecting those factors. I accept those bail concerns exist and that they are a greater chance of materialising than the risk of him failing to appear. Nevertheless, I consider that these risks can be ameliorated to an acceptable level by the proposed conditions which amount to a form of house arrest. In that regard it should be noted that it can be expected that Mr Boatswain's health will deteriorate as time marches on.
5. Accordingly, I am not satisfied that there is an unacceptable risk of a bail concern materialising if Mr Boatswain is released on the conditions I will shortly outline.
6. Accordingly, there will be a grant of bail on the following conditions: 1. The Applicant is to reside at []. 2. The Applicant is not to leave [] unless in the company of his wife, Julie Boatswain, and only for the purpose of reporting to Quakers Hill Police Station, or attending upon the offices of his legal representatives, court, pre-arranged appointments at Centrelink, medical appointments, or to be hospitalised. 3. Except where the Applicant is absent from [] in accordance with condition 2, the Applicant is to present himself to police who attend at those premises to monitor his compliance with bail conditions. 4. The Applicant is to report to Quakers Hill Police Station daily between the hours of 8:00am and 8:00pm. 5. The Applicant is not to apply for a passport. 6. The Applicant is not to approach within 500m of any point of interstate or international departure including any airport. 7. With the exception of Julie Boatswain, Maurice Boatswain or Justin Boatswain, the Applicant is not to contact or attempt to communicate, directly or indirectly, with any Crown witness except through his legal representatives. 8. The Applicant enters into an agreement under which he agrees to forfeit the sum of $250,000 if he fails to appear before a Court in accordance with his bail acknowledgment. 9. The Applicant provides acceptable security for the payment of the sum referred to in [8]. The Court deems his interest in the property at [] to be acceptable security noting that it is jointly owned with his brother.

Amendments 07 July 2015 - Initial of Counsel for the Applicant amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2015