McAndrew v R
[2016] NSWCCA 58
•18 April 2016
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: McAndrew v Regina [2016] NSWCCA 58 Hearing dates: 18 April 2016 Date of orders: 18 April 2016 Decision date: 18 April 2016 Before: Hoeben CJ at CL at [1];
Harrison J at [1];
Schmidt J at [1]Decision: Release application refused
Catchwords: BAIL – release application – show cause offence – whether applicant has shown cause – no sufficient matters identified Legislation Cited: Bail Act 2013 Cases Cited: Director of Public Prosecutions v Boatswain [2015] NSWCCA 185
Director of Public Prosecutions v Campbell [2015] NSWCCA 173
Director of Public Prosecutions v Tikomaimaleya [2015] NSWCA 83
Kangas v R [2015] NSWSC 1294
R v Boyd [2015] NSWSC 1065
R v Kugor [2015] NSWCCA 14
R v Mawad [2015] NSWSC 1237
R v McCormack [2015] NSWCCA 221Category: Principal judgment Parties: Corey McAndrew (Applicant)
Regina (Crown)Representation: Counsel:
Solicitors:
V Lydiard (Crown)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2016/10072 Publication restriction: Nil
Judgment
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THE COURT: Mr McAndrew makes a release application pursuant to s 49 of the Bail Act 2013. He appears without legal assistance. Mr McAndrew did not provide the Court with written submissions in support of his application.
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The application is opposed by the Crown.
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Mr McAndrew is charged with armed robbery. This is a “show cause” offence by virtue of s 16B(1)(i) of the Bail Act. Section 16A of that Act provides as follows:
“16A Accused person to show cause for certain serious offences
(1) A bail authority making a bail decision for a show cause offence must refuse bail unless the accused person shows cause why his or her detention is not justified.
(2) If the accused person does show cause why his or her detention is not justified, the bail authority must make a bail decision in accordance with Division 2 (Unacceptable risk test-all offences).
(3) This section does not apply if the accused person was under the age of 18 years at the time of the offence.”
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In Director of Public Prosecutions v Tikomaimaleya [2015] NSWCA 83 at [16]-[17], Beazley JA said the following:
“[16] The terms of subs (2) make it clear that there is a two-step process involved in determining bail release and detention applications for show cause offences. That this is so is further confirmed by a flow chart in s 16; the provision in s 17(4) that s 17 does not apply if bail is refused under Div 1A; and the provision in s 19(3) that in relation to a show cause offence, the fact that the accused person has shown cause that detention is not justified is not relevant to the determination of whether or not there is an unacceptable risk.
[17] If a person charged with an offence of a type listed in s 16B succeeds in showing cause why his or her detention is not justified pursuant to s 16A(1), it is necessary for a bail authority to consider whether there is an ‘unacceptable risk’ that the person will fail to appear; commit a serious offence; endanger the safety of victims, individuals or the community; or interfere with witnesses: s 19(2). Bail must be refused if the bail authority is satisfied that there is an unacceptable risk: s 19(1). If there are no unacceptable risks, bail must be granted, with or without conditions; or the person may be released without bail; or bail may be dispensed with: s 20.”
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Mr McAndrew unsuccessfully applied to be released on 24 November 2015. Adams J refused that application. However, this application is to be determined afresh and is not an appeal from, or review of, his Honour’s decision: see s 67(1)(e) of the Bail Act; R v Kugor [2015] NSWCCA 14 at [4]; Director of Public Prosecutions v Campbell [2015] NSWCCA 173 at [4]; Director of Public Prosecutions v Boatswain [2015] NSWCCA 185 at [5].
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Allowing for the difficulties under which Mr McAndrew obviously laboured before this Court, being legally unrepresented and presumably unfamiliar both with the court process and the type of matters that he needed to establish, it appears that his position is as follows. When the matter came before Adams J last year, Mr McAndrew and his partner were anticipating the birth of their child in February this year. Mr McAndrew re-emphasised the birth of his child as a matter of continuing, and perhaps more, significance. In addition, when the earlier application came before Adams J, Mr McAndrew had then only recently lost his grandmother with respect to whose death he had been unable adequately to grieve whilst incarcerated. Further, Mr McAndrew had said that he intended to plead not guilty to the charge of armed robbery because he was not present at the events that give rise to it and did not know the victim. He maintained that approach in this Court. Mr McAndrew also indicated in this Court that his mother had suffered a series of strokes, although the precise nature and extent of her condition or any allegedly associated requirement for him to be with her were not made clear.
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Although Mr McAndrew did not directly or specifically address any of these matters in detail, we are prepared to assume for present purposes that he wishes to continue to rely upon all of them. Mr McAndrew did refer to the fact that he wanted an opportunity to turn his life around and that he now recognised as a new father with associated responsibilities that his continued involvement in criminal activities, or at least in those activities that have attracted the attention of the police, was inimical to that process.
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The Bail Act quite understandably does not contain an exhaustive or inclusive definition of what an applicant needs to establish in order to show cause why his or her continued incarceration is not justified. The cases offer several examples. In Kangas v R [2015] NSWSC 1294, McCallum J considered that an opportunity to enter residential rehabilitation was relevant to a show cause requirement. In R v Boyd [2015] NSWSC 1065, Hamill J considered that a combination of factors could operate to satisfy the show cause requirement including, in that case, the prospect of a very lengthy period on remand before the trial was likely. In R v Mawad [2015] NSWSC 1237, Hamill J considered the fact that the applicant had children with severe disabilities in need of special care (hearing impairment and autism spectrum disorder) was sufficient in combination with other matters to satisfy the show cause requirement in that case. In R v McCormack [2015] NSWCCA 221, this Court considered that the accused had shown cause in circumstances where it was by no means certain that he would be sentenced to full time custody, being a man of 65 years of age with no prior history of violent offending and with issues with his health.
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Bearing in mind what was said in Tikomaimaleya at [25], it is nevertheless clear that some of the factors listed in s 18 of the Bail Act are logically relevant to the task of determining whether an applicant has shown that his or her detention is not justified. The length of time that an accused person is likely to spend in custody if bail is refused is obviously one of them. The need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice is another. The prospect that an applicant for release was suffering from a life threatening or even only a significant medical condition that could not adequately be managed in or from a correctional facility would seem to be a stark example of a circumstance likely to satisfy the show cause requirement.
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In the present case, Mr McAndrew has not pointed to any factor or combination of factors that satisfy us that he has shown cause why his continued detention is not justified. Mr McAndrew’s understandable desire to be released on bail for personal and family reasons of importance to him does not easily translate into a demonstration that his continued incarceration should not continue. It may well be that with the benefit of legal assistance, and a different approach to the circumstances that confront him, Mr McAndrew could nominate matters that more directly address the burden confronting him. We make no comment upon whether he could do so successfully. It is sufficient to observe that he has not done so yet.
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In our opinion the release application should be refused. It is therefore unnecessary to express a view, and preferable not to express a view, upon whether the bail concerns nominated by the Crown, or any of them, have been established or whether on the basis of an assessment of those bail concerns and appropriate bail conditions, any unacceptable risks remain.
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Decision last updated: 19 April 2016
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