Myers v Swan (No 2) - [2022] ACTSC 104

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PROCEDURE – Warrant for arrest – Breach of Community Service Order – Where Crown requests that a warrant for arrest be withdrawn – Whether discretion to withdraw warrant rests with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:

Court/Tribunal:	ACT Magistrate’s Court
Before:	Magistrate Doogan
Date of Decision:	15 November 2000
Case Title:	Swan v Myers

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…

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 Myers v Swan (No 2)

Details

AGLC: Myers v Swan (No 2) [2022] ACTSC 104
Case: [2022] ACTSC 104
Decision Date: 7 April 2022

CaseChat Overview and Summary

Myers v Swan (No 2) is a case that involves the defendant, Myers, who is subject to a Community Service Order. The dispute centres on the Crown's request to withdraw a warrant for arrest issued due to Myers' breach of the order. The matter was heard in the Magistrates' Court of Victoria. The legal issue that the court had to determine was whether the court has the discretion to withdraw a warrant for arrest when the Crown requests it, and if so, under what circumstances.

In examining the legal framework, the court considered the statutory provisions governing the issuance and withdrawal of arrest warrants in the context of breaches of Community Service Orders. The court also assessed the principles of judicial discretion and the objectives of the sentencing framework, particularly in relation to the enforcement of community service orders. The court held that the discretion to withdraw a warrant for arrest does not rest solely with the Crown but is subject to the court's independent assessment of the circumstances and the principles of justice.

The court concluded that while the Crown's request to withdraw the warrant could be a factor in the decision, the primary consideration must be the seriousness of the breach and the likelihood of future compliance. Given the nature of the breach and the risk of non-compliance, the court refused the request to withdraw the warrant for arrest. This decision underscores the importance of enforcing compliance with Community Service Orders and the court's role in ensuring that such orders are not lightly disregarded.

Orders

Orders of the court

Request to withdraw warrant refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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