Director of Public Prosecutions v Myers (No 2)

[2025] ACTSC 354

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Myers (No 2)

Citation: 

[2025] ACTSC 354

Hearing Date: 

11 August 2025

Decision Date: 

11 August 2025

Reasons Date: 

15 August 2025

Before:

Slattery AJ

Decision: 

Special hearing to proceed in the absence of the accused.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Trial by judge alone – special hearing due to unfitness to plead - charge of intentionally inflicting grievous bodily harm – no appearance by the accused – whether trial could continue in absence of the accused – consideration of interests of accused, complainant and witnesses – consideration of delay of proceedings

Legislation Cited: 

Bail Act 1992 (ACT), s 49(2)

Crimes Act 1900 (ACT), ss 309, 316

Magistrates Court Act 1930 (ACT)

Supreme Court Act 1933 (ACT), s 68B

Cases Cited: 

DPP v Myers [2024] ACTSC 373

R v Ali [2017] ACTSC 366

R v Jones (1998) 72 SASR 281;104 A Crim R 399

Williams v The Queen [2012] NSWCCA 286; 229 A Crim R 67

Parties: 

Director of Public Prosecutions ( Crown)

Stewart Myers ( Accused)

Representation: 

Counsel

M Howe ( DPP)

Z McBride ( Accused)

Solicitors

ACT Director of Public Prosecutions 

Bevan & Co Lawyers ( Accused)

File Numbers:

SCC 196 of 2023

SCC 197 of 2023

SLATTERY AJ:

1․By indictment dated 24 February 2025, the Director of Public Prosecutions charged Stewart Charles Myers with the offence of intentionally inflicting grievous bodily harm on the complainant, RM. The offence is alleged to have occurred on 9 November 2022. It is alleged that three people, the accused, the occasional partner of the accused, Ms AB, and the complainant, were drinking alcohol at the residence of Ms AB. It is alleged that about 4:15 pm a verbal argument ensued in a garage in the backyard of the home during which the accused struck the complainant on the face and head three to four times. The accused is alleged to have struck the complainant with a form of pole. It is alleged the complainant moved from the garage and up some stairs into the backyard and fell to the ground. The accused allegedly followed and after abusing the complainant, stomped on his legs and his head. The complainant lost consciousness. Ms AB witnessed the assault inside the garage and outside in the backyard.

2․Other neighbouring witnesses gave statements to the police about what they saw happening in the backyard. One saw a male who was waving a form of pole kick and stomp on another male who was on the ground. The other saw a male person waving a form of pole standing over and abusing the other male on the ground. Both saw the male on the ground sit up, his face was covered in blood, and he was bleeding heavily. It is alleged that after regaining consciousness, the complainant found his way to the front yard of the premises.

3․The police attended and located the complainant who was at the time covered in blood and was bleeding heavily from the right side of his face. The police located the accused who told them that what he did was in self-defence, and he only punched the complainant two or three times. On an inspection of the residence, the police observed blood splattered throughout the garage and a large pool of blood in the rear yard. The police also located a large wooden stick covered in camouflage tape in the garage area. Ms AB identified this as a weapon used by the accused to strike the complainant.

4․The complainant was transported to the Canberra hospital and a medical examination revealed the following injuries:

1)Swelling of the forehead around both eyes and at the back of the head.

2)Bruises around both eyes and of the forehead, right arm, back and left leg.

3)Abrasions of the nasal bridge, forehead, right forearm, tongue, back, right third finger, and left elbow.

4)Lacerations of the forehead and the back of the head.

5)Extensive facial bone fractures.

6)Fractures of the frontal and occipital bones of the skull.

7)Pneumocephalus (air around the brain).

8)Intracranial haemorrhages (bleeding around the brain).

9)Possible parenchymal contusion of the brain (brain bruising).

5․On 11 August 2024, Mr Myers’ bail agreement was continued by an order of the Court. In her Honour’s judgment of 21 November 2024, Taylor J decided that Mr Myers is unfit to plead and was unlikely to become fit to plead in the next 12 months (viz. DPP v Myers [2024] ACTSC 373 per Taylor J).The charges against Mr Myers on the indictment were consequently to proceed as a special hearing under s 316 of the Crimes Act 1900 (ACT) (Crimes Act), the content of which is set out below.

6․On 28 May 2025, Mr Myers elected for trial by judge alone under s 68B of the Supreme Court Act 1933 (ACT). A certificate of a legal practitioner Mr Zachary McBride advised the Court that he had advised Mr Myers about this election and he had made the election freely.

7․Section 316 of the Crimes Act provides:

(1)Subject to this section, the Supreme Court shall conduct a special hearing as nearly as possible as if it were an ordinary criminal proceeding.

(2)A special hearing shall be a trial by jury—

(a)unless—

(i)   the Supreme Court is satisfied that the accused is capable of making an election to have a special hearing to be a trial by a single judge without a jury before the court first fixes a date for the hearing; and

(ii)     the accused makes the election before that date; or

(b)unless—

(i)   the Supreme Court is satisfied that the accused is incapable of making the election mentioned in paragraph (a) (i); and

(ii)     before the court first fixes a date for the hearing, any guardian of the accused notifies the court that, in his or her opinion, it is in the best interests of the accused for the special hearing to be a trial by a single judge without a jury.

(3)The Supreme Court must direct the ACAT to appoint a guardian with power to notify the court under subsection (2) (b) (ii) if the court is satisfied that—

(a)there is no guardian who has power to do so; and

(b)the accused is incapable of making the election mentioned in subsection (2) (a) (i).

(4)If—

(a)the accused makes an election under subsection (2) (a) (ii); or

(b)a guardian notifies the Supreme Court under subsection (2) (b) (ii);

the special hearing shall be by single judge without a jury.

(5)Despite subsection (2) (b), if before the date fixed by the Supreme Court for the hearing—

(a)the court is satisfied that the accused is capable of making the election mentioned in subsection (2) (a) (i); and

(b)the accused notifies the court that he or she objects to the special hearing being a trial by a single judge without a jury;

the special hearing shall be a trial by jury.

(6)Unless the Supreme Court otherwise orders, the accused shall have legal representation at a special hearing.

(7)A decision that the accused is unfit to plead to the charge is not to be taken to be an impediment to his or her being represented at a special hearing.

(8)At a special hearing, the accused is to be taken to have pleaded not guilty in respect of the offence charged.

(9)If a special hearing is a trial by jury, the Supreme Court shall, at the commencement of the hearing, explain to the jury—

(a)the meaning of unfitness to plead; and

(b)that the accused is unfit to plead to the charge in accordance with ordinary criminal procedures; and

(c)that the purpose of the special hearing is to ensure that, despite the unfitness of the accused to plead in accordance with ordinary criminal procedures, the accused should be acquitted unless it can be proved beyond reasonable doubt that, on the evidence available, the accused engaged in the conduct required for the offence charged (or an alternative offence); and

(d)the actions that are available to the jury under section 317; and

(e)the legal and practical consequences of those actions.

8․The special hearing was due to commence before me at 10:00 am on 11 August 2025. I held a preliminary hearing at 9:45 am that day. Mr Howe appeared as counsel for the DPP and Mr McBride appeared for Mr Myers. Shortly after the commencement of the preliminary hearing, Mr Myers came into the Court. From the time he entered the courtroom, Mr Myers was abusive, rude, discursive and employed disrespectful and extraordinarily profane language. Similar behaviour of Mr Myers during the hearings conducted in 2024 is described by Taylor J in her Honour’s judgment. It was apparent that the involvement of Mr Myers during the special hearing would, at best, be very problematic. At the directions hearing, his behaviour became so disruptive that it was necessary to order him be removed from the Court.

9․After the removal of Mr Myers from the courtroom, I enquired of his counsel, Mr McBride, whether he had sufficient instructions to proceed. Mr McBride informed me that he had attempted to obtain instructions from Mr Myers and the instructions he had received enabled him to proceed as counsel for Mr Myers in the special hearing.

10․I decided that it was also necessary for enquiries to be made about whether special arrangements could be made to facilitate Mr Myers’ ongoing involvement in the special hearing. I adjourned the commencement of the hearing until 11:00 am that day. I asked for enquiries to be made with court staff about what arrangements could be made for Mr Myers to hear and observe the proceedings if he was unable to maintain appropriate equilibrium in the court sufficient to allow the matter to proceed.

11․Shortly prior to 11:00 am that day, I was informed by court staff that Mr Myers had left the court precinct, and he was not able to be located. He was therefore not responsive to his bail agreement. He was not present at court when the special hearing reconvened at 11:00 am. I was then informed he was not present in the court precinct. At that time, counsel for the DPP submitted that I was in a position to make orders, for the action to proceed in the absence of Mr Myers. In the absence of his client, Mr Mc Bride did not consent to nor oppose the orders sought by the DPP.

12․I made the following orders:  

1)that an all-courts call be made for the defendant Stewart Myers; that call was made and there was no response.

2)A bench warrant issue for the arrest of Stewart Myers under s 49(2) of the Bail Act 1992 (ACT).

3)Adjourn the proceedings for further hearing to 1:30 pm this day.

4)At 1:30 pm this day, I will announce my decision about whether the action was to proceed.

13․The Court reconvened at 1:30 pm and there was no appearance by Mr Myers in response to his bail obligations. The bench warrant for the arrest of Mr Myers had not been executed. I then announced my decision to proceed with the action in the absence of Mr Myers and that I would publish reasons subsequently. These are those reasons.

14․There are several material considerations that I have appraised and to which I have attributed the weight I consider appropriate. This action concerns events that occurred in 2022, some three years ago. It is becoming quite stale. Two of the three principal witnesses appear to be peripatetic and currently reside in the Northern Territory. AVL arrangements have been made for them to give their evidence from a place in Darwin, but these facilities are only available on the first day of trial and so the giving of this evidence cannot be held over until tomorrow or some other date this week.

15․Mr Myers attended at court on the first morning and behaved in the way that I have earlier described. During that attendance he was constantly disruptive and refused to accept my directions about his behaviour. He said that as a sovereign citizen he did not accept the authority of the Court, and he was not subject to the jurisdiction of the Court. He was argumentative, abusive and disrespectful to the Court, counsel, court staff and to me. It was apparent that there could be no expectation that the accused would moderate his behaviour in a way that would enable this special hearing to proceed in an orderly and proper fashion. It was difficult to then perceive how prejudice would be suffered by him if the special hearing proceeded in his absence.

16․I consider that the operative subsections of s 316 of the Crimes Act are subs 316(1), (2), (4), (7) and (8). These have been set out in full earlier in these reasons. One of the purposes of the section is to protect the rights of an accused person in the position of Mr Myers. Another is to give the Court flexibility in the hearing of the matter. At a special hearing, it is not necessary for the DPP to prove the intentional elements of an offence. It is only necessary to prove the physical elements of the offence and so the prosecution is not required to establish intention or any other mental element of an offence.

17․There are several well-settled common law principles arising from first instance and appeal court decisions on whether a trial (as opposed to a special hearing) can proceed in the absence of the accused. In R v Ali [2017] ACTSC 366, Burns J dealt with a situation where an accused charged with serious sexual offences boarded a flight to Pakistan after he had been present in court for the whole of the evidence of the complainant and eight other prosecution witnesses. The accused did not communicate with the Court to explain his absence. He made no contact with close friends, his solicitors or counsel to provide an explanation about why he was leaving Australia. His Honour was satisfied that Mr Ali fled Australia to frustrate the trial of the action.

18․His Honour then discussed the authorities which govern the considerations to be taken into account in the exercise of the discretion whether to continue with the trial of a criminal action in the absence of the accused. Burns J referred with approval to the judgment of R A Hulme J in Williams v The Queen [2012] NSWCCA 286; 229 A Crim R 67, at [92] to [95] in which his Honour discussed the relevant principles (and with which Basten JA was in agreement):

[92] In Jamal v R [(2012) 223 A Crim R 585 at [35], Hidden J referred to what he described as “longstanding authority affirming that, generally speaking, an accused should be present at every stage of a criminal trial”. His Honour went on to refer to some cases in which there has been an exception to that general proposition, one of which was R v McHardie & Danielson [1983] 2 NSWLR 733; (1983) 10 A Crim R 51. In that case there was an issue as to whether the trial judge had erred in failing to discharge the jury when one of the accused (McHardie), having escaped from prison, did not appear. The Court found (at 742; 60) that absconding on bail during a trial amounts to a waiver by the accused of his right to be present at the trial, and similarly so in the case of an accused who escapes from lawful custody.

[93] The Court looked at the following matters in the course of considering whether there was error in the exercise of the discretion by the trial judge in permitting the trial of McHardie to continue: most of the Crown case against McHardie had been given by the time of his escape; it was a very cogent case; a great deal of time of the Court, jury, and witnesses, had been expended up to that stage. Another factor was that the co-offender Danielson who was jointly charged desired the trial to proceed. Their Honours concluded in relation to this ground (at 745; 63):

Notwithstanding the general principle that at an indictable offence trial before a judge and jury the accused’s presence is normally a prerequisite to a fair trial, his failure to appear after the trial has started, through his escape from lawful custody, can correctly be described and found to be a waiver of his right to be present at his trial; that the trial judge has a discretion as to whether he should continue his trial, or discharge the jury.

…

We hold that no error has been shown in the exercise of the judge’s discretion to continue the trial, and that on an overall view of the trial, no miscarriage of justice has been shown in the matter now being considered.

[94] In R v Jones (1998) 72 SASR 281 at 294-295; 104 A Crim R 399 at 412 it was held (at 284-295) that a Court may proceed with a trial in the absence of the accused in circumstances where the accused has waived a right to be present; such a waiver could be constituted by an escape from custody or breach of bail or where without good excuse or explanation the accused absents him or herself from the proceedings. The rationale for this principle was said (at 295; 413) to be that otherwise an accused who was on bail and who believed at some time during the trial that his or her prospects of acquittal were remote could absent himself or herself and thereby force a new trial. If that was the principle it would be necessary to revoke the bail of all accused persons at the outset of their trial which would be an unfortunate and unfair consequence.

[95] Later in Jones it was said that the first matter which must be considered in the exercise of the discretion is whether the accused has voluntarily absented himself or herself and whether such absence indicates a waiver of the right to be present during the whole of the proceedings. The next matter to be ascertained is whether counsel would remain during the continuation of the trial (at 296; 414). Other matters to consider are the strength and nature of the Crown case, the defence insofar as it has been disclosed, the length of time over which the case has run and will run, the prejudice that the accused might suffer, the risk of a miscarriage of justice, the inconvenience to the complainants and the witnesses and the impact upon the administration of justice (at 297; 414). A further matter “a trial judge must always consider” is the fundamental right of an accused to be present at his or her trial and that the discretion to continue at the trial should only ever be exercised sparingly (at 297; 414).

19․Although there is a difference between a special hearing and a trial. I have decided to apply these principles in my determination of the question. The Crown case against the accused has not been commenced. Based on the material presently available to the Court, I consider the prosecution has a very cogent case. The relevant witnesses are available, and the matter is ready to proceed. There is a vulnerable witness and two witnesses are interstate and will give their evidence through AVL connection. The accused has voluntarily absented himself from the proceedings. His behaviour indicates that he does not accept the authority of the Court. Although I am not in a position to decide that he has consciously waived his rights, his behaviour satisfies me that he rejects the authority of the Court and has refused to participate. No defence has been disclosed, and the hearing of the case has not yet commenced, however, the events that are the subject of the charge occurred over three years ago and any further delay in the prosecution of the case is most unsatisfactory. I am satisfied that the absence of the accused from the trial causes no prejudice to the accused. I am also satisfied that Mr McBride is prepared to put everything to the Court that can be put on behalf of Mr Myers. I have the added advantage of hearing this trial as a judge sitting without a jury. I consider that there is no risk of a miscarriage of justice for that reason. Conversely, any delay to the commencement of the hearing in the circumstances I have described will significantly inconvenience the complainant and the witnesses. I am satisfied that any delay in the hearing of this action will have an adverse impact upon the administration of justice.

20․I bear in mind that I must always consider the fundamental rights of the accused. One of those rights is for the accused to be present at his trial. I would only sparingly exercise my discretion to continue with the special hearing in the absence of the accused. This consideration recognises long-standing authority that, generally speaking, an accused must be present at every stage of a criminal trial. Usually, the interests of justice require that an accused hear the case put against him and be able to properly instruct solicitors and counsel on the issues that arise during the trial, especially any controversial evidentiary issues. I have taken these matters into account.

21․I refer to the judgment of Lander J in R v Jones (1998) 72 SASR 281 at 294-295; 104 A Crim R 399 at 412 referred to with approval in Williams. Lander J wrote the decision of the Court of Criminal Appeal of South Australia. I have canvassed the considerations set out by Lander J. I emphasise that this is a special hearing, following the orders made by Taylor J to which I have earlier referred. In the circumstances of a special hearing, prejudice is not an open question as under s 316(8) of the Crimes Act, the accused is taken to have pleaded not guilty and the prosecution is put to proof, subject to the matters to which I have earlier referred. I have discussed the significant inconvenience to witnesses and especially the vulnerable witness and the impact on the administration of justice in the ACT. Another consideration is the continued instability of the defendant which is a further layer of consideration when assessing his fundamental legal rights in the context of a special hearing.

22․The Court takes a very conservative approach to the making of an order that a trial should proceed in the absence of a defendant. Such discretion may only be exercised sparingly. Each case will turn on its own peculiar facts and so the weight to be given to particular considerations will vary from case to case. That is the position in the exercise of any judicial discretion and this case is no different.

23․I have weighed all relevant matters in the exercise of my discretion. The principal matters which weighed more heavily in this balancing exercise were: the seriousness of the allegations on the prosecution case, the effluxion of time since the events subject of the charge and the high level of risk of the prosecution becoming stale, the availability of witnesses and the risk of fading memories if the prosecution was delayed, Mr Myers’ physical and mental state and my satisfaction that his counsel was sufficiently instructed and able to proceed in the special hearing. For those reasons, I was satisfied that the appropriate order is for the trial to proceed in the absence of Mr Myers. I made orders accordingly.

24․There are several further matters that should be mentioned although they do not inform the exercise of my discretion. On the morning of the second day of trial, 12 August 2025, I was informed that Mr Myers had been taken into custody. Arrangements were made for Mr Myers to appear via AVL connection from the holding cells. At the commencement of the hearing that day I was able to make observations of Mr Myers. He appeared to be extraordinarily distressed and agitated.

25․And also on the morning of the second day of trial, I received in my chambers a copy of a request directed to the office of the Director of Public Prosecutions for a s 309 Crimes Act mental health assessment for Mr Myers. The document asserts that Mr Myers is currently in contravention of a psychiatric treatment order for failure to attend his injection appointments, he is making multiple nonsensical sentences to police, he could not answer basic police questions, he has deranged thoughts in relation to being a sovereign citizen and there is concern for his welfare and living conditions.

26․At the commencement of the second day’s hearings, I raised with counsel the notice I have received for the s 309 Crimes Act assessment which referred to the “Magistrates Court Act 1930 (ACT) 42 first instant warrant”. Counsel agreed that the reference to the Magistrates Court Act was in error and that following the revocation by me of the bail of Mr Myers the previous day, there could be no first instant warrant under the Magistrates Court Act. Separately, I am satisfied that the Supreme Court is not empowered to make orders under s 309 of the Crimes Act.

27․At the that time, the Court also received from Canberra Health Services a mental health consumer assessment form, forensic mental health services for Mr Myers signed by the interviewer. The report said that Mr Myers declined to engage with the assessment, he appears to be experiencing deterioration in his mental state and would benefit from review in a therapeutic environment. A copy of the report was given to counsel. An accompanying email dated 12 August 2025 at 10:21 am informs the Court that Mr Myers was requested for a mental health s 309 assessment this morning by the AFP.

28․Mr McBride submitted that the content of the email from Canberra Health Services corroborates the observations made by police and observations that could be made of Mr Myers on the AVL link to the holding cells of the Court that Mr Myers appeared quite agitated, stressed and he was currently quite unwell. Mr McBride submitted that Mr Myers’ condition would deteriorate both physically and mentally if he was required to attend Court for some four to six hours whilst he was unwell. He submitted that the Court could revoke the bail of Mr Myers of its own volition so that he could be transported to a place where he could be treated rather than being held in the Court cells during the day of the hearing. He could obtain no benefit as counsel if Mr Myers remained in the Court cells in his then physical state.

29․Following the making of these submissions, Mr Howe for the DPP applied for the revocation of the bail of Mr Myers and for him to be placed in the custody of the Director-General of Correctional Services in the expectation that Mr Myers could receive immediate treatment. I ordered the revocation of the bail agreement of Mr Myers.

I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Slattery.

Associate:

Date: 15 August 2025