Paul Henry Johnson v Judge Phelan and Director of Public Prosecutions (NSW) [2001] NSWCA 258

Paul Henry Johnson v Judge Phelan and Director of Public Prosecutions (NSW) [2001] NSWCA 258

The informations alleging breach of the Community Service Order were laid and warrants issued on 25 September 1996 and 14 October 1996 while the order was still in force. Those steps, not the claimant's later arrest, constituted the commencement of 'proceedings for an offence' under s 23 of the Community Service Orders Act 1979. The procedure complied with s 24, so the claimant's construction was wrong and the summons should be dismissed.

Jurisdiction
Australia
Judgment Date
13 August 2001
Procedural Posture
Summons Seeking an Order Directing a District Court Judge to State a Case to the Court of Criminal Appeal in Respect of District Court Criminal Appeal Proceedings / Court of Appeal Determination of Summons
Outcome
Summons dismissed
Legal Topics
['community Service Order Breach' 'warrant for Arrest' 'commencement of Proceedings' 'state a Case' 'functus Officio']
['criminal Law' 'criminal Procedure'] ['community Service Order Breach' 'warrant for Arrest' 'commencement of Proceedings' 'state a Case' 'functus Officio']

Case Brief

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Procedural Posture

Summons Seeking an Order Directing a District Court Judge to State a Case to the Court of Criminal Appeal in Respect of District Court Criminal Appeal Proceedings / Court of Appeal Determination of Summons

Legal Issues

  1. 1 ["Whether execution of warrants for the claimant's arrest was unlawful because the Community Service Order had expired more than one month before his arrest." "Whether the word 'proceedings' in s 23 of the Community Service Orders Act 1979 referred to the actual arrest or to the laying of the information and issue of a warrant." 'Whether Judge Phelan could be directed to state a case after making final orders.']

Ratio Decidendi

The informations alleging breach of the Community Service Order were laid and warrants issued on 25 September 1996 and 14 October 1996 while the order was still in force. Those steps, not the claimant's later arrest, constituted the commencement of 'proceedings for an offence' under s 23 of the Community Service Orders Act 1979. The procedure complied with s 24, so the claimant's construction was wrong and the summons should be dismissed.

Court Disposition

Summons dismissed

Orders

  • ['Summons dismissed.']