Myers v Swan (No 2)
[2022] ACTSC 104
•7 April 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Myers v Swan (No 2) | ||||||||
| Citation: | [2022] ACTSC 104 | ||||||||
| Hearing Date(s): | 7 April 2022 & 6 May 2022 | ||||||||
| Decision Date: | 6 May 2022 | ||||||||
| Before: | McCallum CJ | ||||||||
| Decision: | Request to withdraw warrant refused. | ||||||||
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Warrant for arrest – Breach of Community Service Order – Where Crown requests that a warrant for arrest be withdrawn – Whether discretion to withdraw warrant rests with | ||||||||
| prosecuting authority | |||||||||
| Legislation Cited: | Crimes Act 1914 (Cth) s 20AB, s 20AC, 29B, s 29D | ||||||||
| Cases Cited: | Magaming v The Queen [2013] HCA 40; 252 CLR 381 | ||||||||
| Parties: | Byron Sean Myers (Appellant) Donna Swan (Respondent) | ||||||||
| Representation: | Counsel | ||||||||
| None (Ex parte) (Appellant) D Morrison (Respondent) | |||||||||
| Solicitors | |||||||||
| Commonwealth Director of Public Prosecutions (Respondent) | |||||||||
| File Number(s): | SCA 78 of 2000 | ||||||||
| Decision under appeal: |
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| Court File Number(s): CC00/40712; CC00/40704 | |||||||||
| McCallum CJ: |
1. This application raises an interesting question as to the division of authority between the Court and the Commonwealth Director of Public Prosecutions in the prosecution of proceedings for breach of a Community Service Order. The offender, who is not before the Court, was sentenced in the ACT Magistrates Court as long ago as the year 2000 for three counts of defrauding the Commonwealth contrary to s 29D of the Crimes Act 1914 (Cth) and one count of imposition contrary to section 29B of the Crimes Act to a
total of nine months’ imprisonment to be released after 6 months, coupled with a good
behaviour order and reparation order.
2. He appealed to the ACT Supreme Court. The appeal was upheld and the sentences were set aside. In lieu of the original sentence, he was ordered inter alia to perform 208 hours of community service pursuant to section 20AB(1) of the Crimes Act. On 6 November 2001, an information was sworn and a summons issued pursuant to s 20AC(2) of the Crimes Act alleging a breach of the community service order and requiring the offender to appear before the ACT Supreme Court to be dealt with for the alleged breach.
3. The offender failed to appear and, on 15 January 2002, a warrant was issued for his arrest by the Court pursuant to s 20AC(2) of the Crimes Act. The warrant has never been executed.
4. By email dated 7 February 2022, the Commonwealth Director of Public Prosecutions requested that the warrant be withdrawn in chambers, failing which it was sought to have the proceedings listed for mention. The Court declined to withdraw the warrant in chambers and the matter was listed before me. I asked the Director to provide submissions as to why the warrant should be withdrawn in circumstances where the original information sworn on 6 November 2001 had the effect of informing the Court of a breach of one of its orders.
5. Mr Morrison, a Federal Prosecutor with the office of the Commonwealth of Director of Public Prosecutions, has since provided helpful submissions directed to that issue. He notes that the process for dealing with a federal offender for breach of an order under s 20AC is properly characterised as a creature of statute. That is, the Court is not concerned in its inherent jurisdiction with the protection of the integrity of the Court's orders but rather is exercising the jurisdiction conferred on it by a Commonwealth statute.
6. Mr Morrison further submits that it is broadly accepted that the decision to commence or continue criminal proceedings rests with the prosecuting authority. So much is established by the decision of the High Court in Magaming v The Queen [2013] HCA 40; 252 CLR 381. That decision explains that the prosecutorial choice between available charges is not an exercise of judicial power. It follows that the Court should respect the prosecutorial decision-making process and not seek to intervene in it. However, as also acknowledged in Mr Morrison's submissions, there appears to be no judicial consideration of prosecutorial discretion as it specifically applies to proceedings under section 20AC of the Crimes Act.
7. Mr Morrison contends that, for Commonwealth offences, decisions in relation to criminal proceedings must be made in light of the prosecution policy of the Commonwealth. So much may be accepted. There is, however, an important and, in my view, critical distinction between prosecutorial decisions concerning the commencement of criminal proceedings and proceedings to enforce orders of the Court made upon the determination of criminal proceedings, whether they be for state or federal offences. Mr Morrison's submissions provide what might be characterised as ample or at least respectable reason why the Commonwealth Director of Public Prosecutions might now, if it were considering the issue afresh having only just become aware of the breach, make a decision within the prosecution guidelines of the Commonwealth Director of Public Prosecutions not to prosecute the breach. That, however, is not the position.
8. The Court has been informed of a breach. There is no evidence before the Court as to any attempts made to locate the offender to be dealt with for the alleged breach. The evidence is entirely silent on that issue. In my view, to accede to the request of the Commonwealth Director of Public Prosecutions request at this stage would have the effect of condoning the conduct of an offender who, according to the information sworn and available to the Court, appears to have thumbed his nose at an order of the Court having been successful in an appeal against more severe sentences. For those reasons, I am not persuaded that it is appropriate to withdraw the warrant. I record my gratitude to Mr Morrison for his careful submissions directed to this issue.
I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum.
Associate:
Date: 7 July 2022
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