Civic v Director of Public Prosecutions [2012] QCA 277

[2012] QCA 277 COURT OF APPEAL HOLMES JA MUIR JA FRASER JA Appeal No 7722 of 2012 SC No 4560 of 2012 MIRKO CIVIC Appellant v DIRECTOR OF PUBLIC PROSECUTIONS Respondent BRISBANE DATE 12/10/2012 JUDGMENT HOLMES JA: The appellant has appealed against a decision of a judge of the trial division refusing him bail on a charge of murder. Because the charge was one of murder, s 16(3) of the Bail Act 1980 required the appellant to show cause why his detention in custody was not justified before bail could be granted. There is nothing in the amended notice of appeal which could be called an appeal ground; and, in fact, counsel conceded that he could identify no error by the trial judge. He did raise matters which he said might support self-defence. But, as he also conceded, it did not mean that there was not a strong Crown case of murder on the material before his Honour. Counsel's second concern was whether the appellant's medical condition could be managed while he was in custody. He said that his client had complained of not getting sufficient medical help. In that regard, it should be said that the learned judge adjourned the hearing of the bail application from 6th to 8th of June 2012, because the appellant said that he was -- 1 of 3 -- 2 suffering from a prostate condition which might be cancer and needed to be on bail to get proper medical treatment. Accordingly, the respondent, on the return of the application, filed an affidavit annexing a selection of the appellant's medical records. They showed that he had complained of stomach pain and the passage of blood in his urine on occasions over the preceding nine months. He had been seen at the Princess Alexandra Hospital Urology Department on 9 May 2012, where his complaints of pain and haematuria on multiple occasions were noted. The possibility of bladder cancer was raised, but the appellant was unwilling to undergo cystoscopy. The specialist ordered cytology tests which were performed the following week on three of the appellant's urine specimens. No malignant cells were seen, although there were some atypical cells of uncertain significance, for which clinical follow-up was recommended. Also annexed to the respondent's affidavit were a report dated 6 June from the visiting medical officer at the gaol where the appellant was held, and a file note of the conversation with the doctor on 7 June. In summary, he said that the appellant suffered from benign hyperplasia of the prostate, or, in other words, an enlarged prostate which could cause blood to appear in the urine and pain on urination. His condition could be managed in the gaol, where he was given medication and pain relief for it. The appellant was under the care of the urologist at the Princess Alexandra Hospital, and attended as the urologist indicated. On the basis of that information, the primary judge concluded that there was no basis to think that the appellant's medical condition could not be properly managed at the gaol. The appellant has filed an affidavit in this appeal which annexes the clinical notes of a further attendance at the hospital on 18 July 2012. It records that the appellant was still suffering from haematuria, but remained unwilling to undergo a cystoscopy which the urologist wished to offer him because he, the urologist, was worried about bladder cancer. The appellant's written submissions on the topic asserted that the appellant has a serious medical condition that must be treated without delay. There was reference to the cytology -- 2 of 3 -- 3 report recommending clinical follow-up which, it was suggested, was not done. That is plainly wrong as the records show that the appellant has been followed up since the cytology was done. The greater difficulty with the appellant's assertions is that, as the records made clear, it is not known whether he has a serious medical condition or not, because he has declined to undergo the necessary examination. There is nothing on the material before the primary Judge or, for that matter, before us to lead to a conclusion that the appellant is not receiving appropriate treatment to the extent it can be given in the absence of his further cooperation. There is no error shown in relation to that finding by the primary Judge, nor, as I have already said was conceded, in relation to the finding that there was a strong Crown case against the appellant on the charge of murder. The appellant has demonstrated no error in the trial Judge's reasoning. I would dismiss the appeal. MUIR JA: I agree. FRASER JA: I agree. -- 3 of 3 --