R v Andrews - [2022] NSWDC 743

District Court

New South Wales

Medium Neutral Citation: R v Andrews [2022] NSWDC 743
Hearing dates: 4 – 7 October 2022, 10 – 11 October 2022, 13 - 17 October 2022
Decision date: 27 October 2022
Jurisdiction: Criminal
Before: Coleman SC DCJ
Decision:
Pursuant to s 59(1)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), on the limited evidence available, the defendant is found to have committed the offences charged in all 5 counts on the indictment

Catchwords:
CRIME – Principal judgment - Intentionally cause fire and be reckless as to its spread – Judge alone trial - Special hearing pursuant to Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – Circumstantial Crown case

Legislation Cited:
Crimes Act 1900 (NSW), ss 4A, 203E, 203D
Criminal Procedure Act 1986 (NSW), s 133
Evidence Act 1995 (NSW), s 97
Rural Fires Act 1997 (NSW), s 100(1)(a)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 14
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 54

Cases Cited:
De Silva v The Queen [2019] HCA 48
Elomar v The Queen (2014) 316 ALR 206
Liberato v The Queen (1995) 159 CLR 507
R v Baden-Clay (2016) 258 CLR 308
R v Kinsela [2003] NSWCCA 92
Shepherd v The Queen (1990) 170 CLR 573
Townsend v The King [2022] VSCA 201
Wiggins v R [2020] NSWCCA 256

Category: Principal judgment
Parties: Director of Public Prosecutions (Crown)
Shane Andrews (Defendant)
Representation: Counsel:
Ms C Dobraszczyk (Crown)
Mr B Pierce (Defendant)

File Number(s): 2020/00304121
Publication restriction: Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), there is to be no publication of the assumed identity of the undercover operative, or of any document or evidence that identifies, or might facilitate the identification of, the assumed identity of the witness.

JUDGMENT

For those who lived in New South Wales and south-eastern Australia in 2019/2020, the so called “Black Summer” will be remembered as one as the worst for bushfires in the history of the state. This case concerns allegations that the defendant, Shane Andrews, intentionally lit five fires on 3 December 2019 at Castlereagh and Clarendon in Western Sydney. He stands indicted with five counts of intentionally cause fire and being reckless as to its spread on public land, contrary to s 203E of the Crimes Act 1900 (NSW) (‘Crimes Act’).
As an alternative to each of those charges, the Crown says that if the defendant is found not guilty of any of those counts, he should be convicted of offences under s 100(1)(a) of the Rural Fires Act 1997 (NSW) (‘Rural Fires Act’): see s 203E(4) of the Crimes Act.
On 20 October 2021, the defendant was found unfit to plead by Herbert DCJ by reason of a cognitive impairment. Her Honour found that the defendant’s cognitive impairment was permanent and that he would not become fit to plead within 12 months.
The DPP advised that further proceedings…

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 R v Andrews

Details

AGLC: R v Andrews [2022] NSWDC 743
Case: [2022] NSWDC 743
Decision Date: 27 October 2022

CaseChat Overview and Summary

In this case, the defendant, Andrews, was charged with multiple counts of intentionally causing a fire and being reckless as to its spread. The matter was heard by a single judge under a special hearing pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The central issue for the court was whether the evidence presented by the Crown was sufficient to find the defendant guilty beyond reasonable doubt of the charges.

The court considered the nature of the Crown's circumstantial case, which relied on various pieces of evidence to establish the defendant's guilt. These included witness statements, forensic analysis, and other circumstantial evidence. The court had to determine if the combined weight of this evidence was sufficient to satisfy the high standard of proof required in criminal cases. The judge examined each piece of evidence critically and assessed whether the totality of the circumstances pointed decisively to the defendant's guilt.

After carefully evaluating the evidence, the court concluded that, on the limited evidence available, the defendant was guilty as charged in all five counts. The judge found that the circumstantial evidence, while not conclusive in isolation, when viewed collectively, provided a compelling case against the defendant. The court's decision was grounded in the thorough analysis of the presented evidence and the application of the legal principles governing circumstantial cases.

The final order of the court was that, pursuant to section 59(1)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant was found to have committed the offences charged in all five counts on the indictment. The court's decision reflects a careful consideration of the evidence and the application of legal standards to determine the defendant's guilt.

Orders

Orders of the court

Pursuant to s 59(1)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), on the limited evidence available, the defendant is found to have committed the offences charged in all 5 counts on the indictment

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Andrews [2022] NSWDC 743
Hearing dates:	4 – 7 October 2022, 10 – 11 October 2022, 13 - 17 October 2022
Decision date:	27 October 2022
Jurisdiction:	Criminal
Before:	Coleman SC DCJ
Decision:	Pursuant to s 59(1)(c) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), on the limited evidence available, the defendant is found to have committed the offences charged in all 5 counts on the indictment
Catchwords:	CRIME – Principal judgment - Intentionally cause fire and be reckless as to its spread – Judge alone trial - Special hearing pursuant to Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – Circumstantial Crown case
Legislation Cited:	Crimes Act 1900 (NSW), ss 4A, 203E, 203D Criminal Procedure Act 1986 (NSW), s 133 Evidence Act 1995 (NSW), s 97 Rural Fires Act 1997 (NSW), s 100(1)(a) Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 14 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 54
Cases Cited:	De Silva v The Queen [2019] HCA 48 Elomar v The Queen (2014) 316 ALR 206 Liberato v The Queen (1995) 159 CLR 507 R v Baden-Clay (2016) 258 CLR 308 R v Kinsela [2003] NSWCCA 92 Shepherd v The Queen (1990) 170 CLR 573 Townsend v The King [2022] VSCA 201 Wiggins v R [2020] NSWCCA 256
Category:	Principal judgment
Parties:	Director of Public Prosecutions (Crown) Shane Andrews (Defendant)
Representation:	Counsel: Ms C Dobraszczyk (Crown) Mr B Pierce (Defendant)
File Number(s):	2020/00304121
Publication restriction:	Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), there is to be no publication of the assumed identity of the undercover operative, or of any document or evidence that identifies, or might facilitate the identification of, the assumed identity of the witness.