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[2005] VSCA 325
Court of Appeal (Vic)
2005-12-16
MAXWELL, P. and CHARLES, J.A.
Original judgment source is linked above.
Criminal Law - Bail pending appeal - Where applicant suffers from medical condition and psychological condition - Whether standard of medical care in custody warranted a grant of bail - Whether obvious neglect of human rights of prisoner - Bail refused
1 This is an application for bail by Little Joe Rigoli, who was sentenced on 29 July this year to two years' imprisonment, having been found guilty of four counts of defrauding the Commonwealth. The sentencing judge in the County Court ordered that 16 months be served before Mr Rigoli would be released upon entering into a recognisance in the sum of $2,500 on condition that he be of good behaviour for a period of eight months. A previous bail application made by Mr Rigoli, and an application by his father, who was convicted and sentenced at the same time, were refused.
2 The renewed application is based on the proposition that Mr Rigoli has a serious heart condition and a serious degree of mental disturbance. On 9 December this year the Court heard the first part of the bail application. There was evidence from the Director of Public Prosecutions in relation to the medical condition, that is to say, the heart condition. There was, however, no evidence at all on behalf of the prosecution as to what was being done in relation to the psychological condition.
3 In adjourning the application to today we directed that any further material in relation to that topic be filed by the Director and then Mr Rigoli would have an opportunity to respond. There have been, in the intervening days, two additional affidavits filed on behalf of the Director and two affidavits filed on behalf of Mr Rigoli. In adjourning the hearing last week we indicated that we were not persuaded, on the medical side, that there was any reason to doubt that Mr Rigoli's medical condition was being appropriately attended to. That remains our view.
4 I do not discount for a moment the concerns expressed by counsel for Mr Rigoli about what is said to be irregularity in the administration of his medication. In my view, it is of the first importance to the provision of the medical care to which Mr Rigoli is entitled that medication which is prescribed for him be administered to him with absolute regularity as and when required; that is to say, in accordance with the prescription of the medical practitioner. Any failure on the part of the correctional authorities to make sure that the medication was provided precisely when it is prescribed to be administered would be, in my view, to fall below the standard of care which anyone in custody is entitled to expect. But, as I have indicated to counsel for Mr Rigoli, we are not in a position to conduct a trial of fact as to precisely what has occurred in relation to particular medication and whether it was or was not administered, or was or was not refused, on any given day. The evidence in relation to the heart condition satisfies us that the condition is likely to receive appropriate attention between now and the forthcoming appeal on 16 January 2006.
5 This Court must be mindful of the international human rights guarantees in relation to treatment of prisoners. I will not elaborate them now. Suffice it to say that there is an obligation to ensure adequate and appropriate medical care for any person in the custody of the State.[1] If, as is suggested in some of the material, the facilities made available for the medical and psychological care of prisoners are said to be deficient in some respect, that is not a matter which this Court can ordinarily investigate on a bail application. A court of law is peculiarly unsuited to evaluating the adequacy of the treatment of a particular person having a particular condition, whether medical or psychological. Whether the care in a particular case is adequate or not is a matter for expert opinion. Accordingly, in my view, it would be a rare case indeed in which this Court would come to the view that the standard of medical care provided to a person in custody fell so far below what was required as to warrant a grant of bail pending appeal where bail would not otherwise be granted.
6 In relation to the psychological side, in my view this is not a case that comes within that exceptional category. There are said to be shortcomings in the management of the psychological issues to date, but when the material is hearsay on both sides and when we have a file produced which is simply a record of what has been written by people who are not before the court, it is impossible to make any judgment - indeed, it would be inappropriate to make any judgment - on particular aspects of treatment. As I have said, this Court would only intervene on a medical issue where there was such obvious neglect of the human rights of the prisoner - that is to say, of his entitlement to adequate and appropriate medical care - that intervention by means of a bail order was justified.
7 It is not in contest that on Monday - that is to say, in three days from now - Mr Rigoli will be seen by a psychologist in Beechworth. That, on any view, is exactly what his psychological distress requires, and the fact that it is occurring so soon after this resumed hearing is again to be welcomed. The Court has been informed that, if the psychologist forms the view that Mr Rigoli needs to see a psychiatrist so that medication can be prescribed if required, that will be done. The Court proceeds, as it must, on the assumption that that is what will occur. If it turned out that the Court's expectation about an appropriate response to Mr Rigoli's condition was not met, then what I have said already about the entitlement of Mr Rigoli to proper treatment would justify the making of a fresh application for bail.
8 As things stand, far from coming to a conclusion that there is such deficiency in his care as to warrant a grant of bail, what is about to occur is precisely what should be occurring. Accordingly, in my view, there is no ground made out on the psychological side which would justify a grant of bail.
9 For these reasons, in my opinion, the bail application should be dismissed. I note again that the appeal is to be heard as early as 16 January, which is about four weeks away. The application for bail can of course be renewed at any time before then, or at the conclusion of the hearing of the appeal. At that time, the Court will be fully seized of the issues and will have formed some kind of view about the strength of the grounds on which the appeal is brought.
11 The order of the Court is that the application for bail is refused.
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[1] See, for example, Article 10 of the International Covenant on Civil and Political Rights; United Nations Committee on Economic, Social and Cultural Rights, General Comment No 14 on the Right to the Highest Attainable Standard of Health at [34]; The Standard Minimum Rules for the Treatment of Prisoners (Adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977) at [22]-[26]; The Basic Principles for the Treatment of Prisoners (Adopted and proclaimed by General Assembly resolution 45/111 of 14 December 1990) at [9].