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McAndrew v R

McAndrew v R

Case [2016] NSWCCA 58 18 April 2016

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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 221
Category: Principal judgment
Parties: Corey McAndrew (Applicant)
Regina (Crown)
Representation:
Counsel:
V Lydiard (Crown)
Solicitors:
Solicitor for Public Prosecutions (Crown)

File Number(s): 2016/10072
Publication restriction: Nil

Judgment

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.
The application is opposed by the Crown.
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.”

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McAndrew v R

Details

AGLC: McAndrew v R [2016] NSWCCA 58
Case: [2016] NSWCCA 58
Decision Date: 18 April 2016

CaseChat Overview and Summary

McAndrew, the applicant, sought bail in the Supreme Court of Queensland. The applicant was facing charges for a serious offence which required him to show cause as to why he should not be detained before trial. The court was tasked with determining whether the applicant had demonstrated sufficient cause for his release on bail.

The court examined the criteria for bail, focusing on whether the applicant had identified matters that warranted bail. The applicant argued that the seriousness of the offence was not sufficient grounds to deny bail without further evidence of risk to the community or likelihood of reoffending. The court considered the principle that bail is not an automatic right, especially for serious offences, but must be balanced against the presumption of innocence and the applicant's right to a fair trial.

The court found that the applicant had not provided sufficient cause to warrant his release on bail. The seriousness of the offence, coupled with the lack of compelling factors that would support his release, led the court to conclude that the applicant had not met the necessary threshold. Consequently, the application for bail was dismissed. The court emphasised the importance of the presumption of innocence, but highlighted that this must be balanced against the potential risks to the community if the applicant were released.

Orders