Citation: McAndrew v Regina [2016] NSWCCA 58
Court: Court of Criminal Appeal
Date: 18 April 2016
Judges: Hoeben CJ at CL, Harrison J, Schmidt J
Background
The applicant was charged with armed robbery and sought release on bail under s 49 of the Bail Act 2013 (NSW). He appeared unrepresented and did not file written submissions. A previous release application had been refused by Adams J in November 2015.
Because this was a fresh application rather than an appeal, the Court of Criminal Appeal considered the matter anew. The applicant raised several personal and family circumstances in support of release, including the recent birth of his child, the death of his grandmother, his mother's strokes, and his intention to plead not guilty on the basis that he was not present at the alleged offence.
The Crown opposed the application.
Legal Issues
- Whether armed robbery is a "show cause" offence requiring the applicant to demonstrate that continued detention is not justified, under s 16A and s 16B of the Bail Act 2013
- Whether the applicant had shown cause why his detention was not justified
- If cause were shown, whether any unacceptable risks under the bail assessment criteria would then require separate consideration
Decision
Armed robbery is a "show cause" offence under s 16B(1)(i) of the Bail Act 2013, which means bail must be refused unless the applicant first demonstrates that continued detention is not justified. The Court reaffirmed the two-step process confirmed in DPP v Tikomaimaleya: the show cause threshold must be satisfied before the unacceptable risk test under Division 2 even arises.
The Bail Act does not define exhaustively what satisfies the show cause requirement. The Court reviewed examples from recent case law, including cases where residential rehabilitation opportunities, lengthy remand periods, children with significant disabilities, advanced age combined with no history of violent offending, and serious medical conditions had been found sufficient, either alone or in combination.
The applicant's personal and family circumstances, while understandable, did not satisfy the show cause requirement. The Court acknowledged that legal representation and a more targeted approach might have allowed the applicant to present matters more directly bearing on the burden he faced, but declined to comment on whether such an attempt would succeed. The application was refused on the first step alone.
Because show cause was not established, the Court declined to express any view on the unacceptable risk limb or whether any proposed bail conditions could address Crown concerns.
Orders Made
• The release application should be refused
Key Takeaways
- Under s 16A of the Bail Act 2013, an applicant charged with a show cause offence must first demonstrate that continued detention is not justified before a bail authority proceeds to the unacceptable risk assessment under Division 2.
- A fresh bail application under s 49 of the Bail Act is not an appeal from or review of any earlier decision, and is determined on its own merits.
- Personal and family circumstances such as the birth of a child, bereavement, or a desire to rehabilitate do not, without more, satisfy the show cause threshold.
- Factors potentially capable of satisfying show cause include access to residential rehabilitation, a prospect of a very lengthy remand, care responsibilities for children with severe disabilities, advanced age with no prior violent offending, or a serious medical condition that cannot adequately be managed in custody.
- Refusing bail at the show cause stage rendered it unnecessary to assess unacceptable risk, and the Court expressly declined to comment on that second step.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW), ss 16A, 16B, 17, 19, 20, 49, 67
Cases:
- Director of Public Prosecutions v Tikomaimaleya [2015] NSWCA 83
- Director of Public Prosecutions v Boatswain [2015] NSWCCA 185
- Director of Public Prosecutions v Campbell [2015] NSWCCA 173
- R v Kugor [2015] NSWCCA 14
- R v McCormack [2015] NSWCCA 221
- Kangas v R [2015] NSWSC 1294
- R v Boyd [2015] NSWSC 1065
- R v Mawad [2015] NSWSC 1237