Christine Toon v Margaret Hall No. SCGRG 92/2478 Judgment No. 3959 Number of Pages 4 Criminal Law and Procedure Statutes (1992) 59 Sasr 137 - [1993] SASC 3959

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA LEGOE ACJ(1), PERRY(2) AND DUGGAN(3) JJ

CWDS
Criminal law and procedure - jurisdiction, practice and procedure. Power of judge under s.26F(4)(b) of the Service and Execution of Process Act (Cth) 1901 to order community service work in lieu of orders of imprisonment made by a magistrate with regard to road traffic offences incurred in another State.
Statutes - operation and effect of statutes - Section 26F(4)(b) of the Service of Execution of Process Act (1901) Cth does not enable the court to exercise its powers under s.18 of the Criminal Law (Sentencing) Act (1988) (SA) - appeal allowed - fines still owing by respondent to be remitted - consideration of the operation of s.67 of the Criminal Law (Sentencing) Act1988 (SA) in the light of s.26F(4)(b) of the Service and Execution of Process Act (1901) Cth.
Criminal Law (Sentencing) Act 1988 (SA) s.18 and Service and Execution of Process Act s.26F(4)(b).

HRNG ADELAIDE, 6 May 1993 #DATE 6:5:1993
Counsel for appellant:     Mr W C Chivell
Solicitors for appellant:    Crown Solicitor
Counsel for respondent:     Mr G Mead
Solicitors for respondent: Legal Services Commission

ORDER
Appeal allowed.

JUDGE1 LEGOE ACJ This is an appeal from an order of a judge of this court who had undertaken a review of certain orders made in respect to interstate warrants. These orders had been made by a magistrate. The terms of the orders are not really of relevance for the determination of the appeal, except in so far as to say that the magistrate had ordered that sentences of imprisonment be imposed upon the respondent in respect of certain road traffic offences which occurred in the State of Victoria and in respect of which fines and costs had been imposed. 2. The respondent had failed to pay those fines and on the facts, which were apparently accepted by the learned judge on appeal, the respondent had made application to the Clerk of the Court requesting that instead of paying the fines, she carry out community service work. There is no order on the court record to this effect, and I agree with the remarks of the learned judge at the end of his reasons that courts who make such orders or refuse such applications, should make the appropriate endorsement on the warrant for the purposes of establishing some sort of record. 3. The respondent then applied for a review of the orders made by the learned magistrate pursuant to s.26G of the Service and Execution of Process Act 1901 Cth. (hereinafter referred to as "the Act"). 4. The issue raised on this appeal arises under Part 4A of the Act, and in particular, s.26D which makes provision for the issue of warrants of apprehension, s.26E which provides for the execution of a warrant of apprehension, and especially s.26F which provides for proceedings before the court upon the return of the executed warrant. 5. The problem that has arisen in this matter…

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.

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Details

AGLC: Christine Toon v Margaret Hall No. SCGRG 92/2478 Judgment No. 3959 Number of Pages 4 Criminal Law and Procedure Statutes (1992) 59 Sasr 137 [1993] SASC 3959
Case: [1993] SASC 3959
Decision Date: 6 May 1993

CaseChat Overview and Summary

Christine Toon appealed against an order made by a judge of the Supreme Court of South Australia, who had reviewed orders made by a magistrate concerning interstate warrants. The magistrate had imposed sentences of imprisonment on the respondent, Margaret Hall, for road traffic offences committed in Victoria. The respondent had not paid the fines imposed, and applied to perform community service work instead. The issue was whether the judge had the power to order community service under s.26F(4)(b) of the Service and Execution of Process Act 1901 (Cth). The court held that the judge did not have the power to order community service under s.26F(4)(b) of the Act as it did not enable the court to exercise its powers under s.18 of the Criminal Law (Sentencing) Act 1988 (SA). The appeal was allowed, the order of the learned judge was quashed, and the fines imposed on the respondent were remitted.

Orders