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First instance warrants (warrants of apprehension)

These warrants are issued by the Court when a defendant has failed to appear in court on the date stipulated on either the summons or the bail agreement. An arrest in relation to the execution of an outstanding warrant of apprehension is a common reason for a person to be in overnight custody awaiting an application for bail [see Bail chapter].

When a defendant fails to appear in court and is not brought to the Court on a warrant of apprehension, the prosecution may bring an ex parte application in Magistrates Court seeking orders that the Magistrate find the charge proved. If they so find, in some cases penalty may also be imposed ex parte, and in others the Magistrate will issue a warrant requiring the defendant to attend for sentence.

When a defendant does not appear in court on their matter NAD for no appearance defendant is endorsed on the court file.

Failure to answer a summons

A court can issue a warrant for the apprehension of a defendant in accordance with the Criminal Procedure Act 1921 (SA) following the filing of a Information in court when the allegations are substantiated on oath, or when the defendant has failed to appear in accordance with a summons which was served a reasonable time before the hearing [see Criminal Procedure Act 1921 (SA) s 57 for issue of a summons for an Information; and ss 58(a), s 103(1)(b)(i), 58(b) and s 62(1)(a)] [see Courts and Jurisdiction chapter].

In relation to Commonwealth offences, a court may issue a warrant for the apprehension of a defendant in accordance with the provisions of the Crimes Act 1914 (Cth) and the Judiciary Act 1903 (Cth) [see s 68(1) for court powers and jurisdiction]. A court may issue a warrant for the apprehension of a defendant in relation to an information when that information is on oath, is accompanied with an affidavit stipulating the reasons why the warrant is being sought and the Court considers there are reasonable grounds for the issue of the warrant [seeCrimes Act 1914 (Cth) s 3ZA(1)]. The affidavit must include reasons why the defendant is believed to have committed the offence and must show reasons why the proceedings cannot commence by way of summons [see Crimes Act 1914 (Cth) s 3ZA(1)(b) and Courts and Jurisdiction chapter].

A warrant may be issued immediately or the warrant may lie on the file. If a warrant is issued immediately WTI for the words warrant to issue will be endorsed on the court and prosecution files.

If a warrant lies on the file, it will only issue if the defendant fails to appear on the next occasion their matter is before the Court.

The form of a warrant

Each warrant must briefly describe the substance of the Information upon which the warrant is founded, name or describe the defendant, and order the defendant be apprehended and brought before the Court to answer the charge contained in the Information [see Criminal Procedure Act 1921 (SA) s 20(1) and Warrant of Apprehension Form 6]. When issued a warrant allows for the arrest of a person located within the State and remains in force until it is executed [see Criminal Procedure Act 1921 (SA) ss 20(3) and 20(4)].

Endorsements about bail

When the Court issues a warrant for the arrest of a defendant, it may endorse the warrant with CFB for the words certified for bail. This indicates that the defendant may be released on bail by a member of the police force or by a specified person to appear at court on a later date [see Bail Act 1985 (SA) s 5(1)(e)(i)]. The Court may also endorse the warrant with NCFB for the words not certified for bail. This indicates that the defendant may not be released on bail, in which case the defendant must be brought before the Court as soon as practicable following apprehension [see Bail Act 1985 s 5(2)(b) and Criminal Procedure Act 1921 (SA) ss 20, 59 and 104(1)(b)(i)].

There is no power to delay bringing the defendant to court due to an investigation or interrogation [see R v Addabbo (1982) 33 SASR 84for an example of this principle]. Following an arrest on a warrant and appearance in court, the Court may remand the defendant into custody or grant bail pending the next court appearance [see Criminal Procedure Act 1921 (SA) ss 59(2), 104(1)(b)(i), s 60(1) and s 60(2) and Bail chapter].

Defective arrest warrants

An order, summons, warrant or any other process of the Court is not invalid by reason of any defect of substance or form [see Criminal Procedure Act 1921 (SA) s 182]. The Court may amend any order, summons, warrant or other process to correct the defect of substance or form and may revoke the order, summons, warrant or other process where the person the subject of the warrant has been substantially prejudiced by the defect [see Criminal Procedure Act 1921 (SA) ss 182(2)(a) and 182(2)(b)].

Cancelling a warrant

The Governor may cancel a warrant for the apprehension of a person if it has not been executed within 15 years from the day it was issued and may cancel any other warrant if it has not been executed within 7 years from the day on which it was issued [see Criminal Procedure Act 1921 (SA) ss 187AA(1)(a) and 187AA(1)(b)]. A warrant which has been cancelled ceases to have any force or effect and must be destroyed [see s 187AA(2)].

REQUEST TO RECALL AN OUTSTANDING ARREST WARRANT

The duty solicitor will receive requests for assistance from people who attend the duty solicitor’s office in distress due to missing court and where a warrant has been issued for their arrest.

For those that attend court late on the day of the hearing, but before the warrant has issued, the duty solicitor can ask for the matter to be relisted before the Magistrate and request they recall the warrant due to the person’s subsequent attendance at court. The Magistrate will want to know why the person was late. This can occur where the order for the warrant has not yet issued and remains in the court building.

Those who attend court late after an issue of warrant will have to hand themselves into the nearest police station but may require the assistance of the duty solicitor to apply for bail when they are subsequently brought to court for a bail application.

Non-attendance at court - summons not served

A common reason for non-appearance at court is that the summons has not been served on the defendant, because the defendant has moved address [see Courts and Jurisdiction chapter for service requirements]. The defendant therefore does not attend court on the day required because they are unaware of the requirement to do so. The law makes no allowance for this situation. With the execution of warrant, the defendant may still be arrested, or if they voluntarily hand themself in to the police, must still be held in the police cells until brought before a Magistrate for a bail application.

When the summons has not been served the court file is endorsed with SNS for the words summons not served. The prosecution will usually not oppose a simple bail agreement where it is demonstrated that the failure to appear at court was due to the summons not being served.

CHECK THE POLICE AND COURT FILES
The duty solicitor should always check the court file and the police file to see if the summons has been served. For offences which have penalties of imprisonment or licence disqualification there is a requirement for proof of service by certificate of service or by affidavit. The certificate of service is on the second page of the summons (or complaint and summons) and should be on the court file. For summary offences which do not carry a term of imprisonment or licence disqualification, the summons may have been posted to the defendant’s last known address. Both the police and court files may also have the endorsement SNS which indicates the summons has not been served.

SPEAK TO THE PROSECUTOR

Check the prosecutor’s attitude; if there is no opposition to bail, you need only take instructions as to the defendant’s residential address and then apply for bail on the defendant’s own recognisance.

ADDRESS THE ISSUE OF PREVIOUS NON-ATTENDANCE AT COURT

In addition to the usual submissions given in the bail application, the issue of non-attendance at court must be addressed.

Non-attendance at court - failure to answer bail

When a defendant who is on bail fails to attend court on any given date, the Court may cancel their right to be at liberty and issue a warrant for their arrest [see Bail Act 1985 (SA) ss 18(1)(a) and 18(1)(b) and Warrant of Apprehension Form 6]. The execution of warrant takes place upon the arrest of the defendant, or their surrender to the police and an application for fresh bail must be made in the appropriate court. Where there is no good reason for the defendant’s previous non-appearance, the Court before which the defendant appears may order the monetary amount stipulated in the original bail agreement or guarantee be paid to the Court [see Bail Act 1985 s 19(1) for estreatment of bail]. The Court may reduce the amount of the forfeiture or rescind the order for any sufficient reason upon application by the person in relation to whom the order is made or upon the Court’s own initiative [see s 19(3)]. The Court may allow time for payment of the amount forfeited and allow payment in instalments [see s 19(3a)].

ESTREATMENT
The Court may ask the duty solicitor to address the issue of the estreatment of bail when making an application for bail. The duty solicitor should therefore take instructions on this issue and assist the defendant should they want to make an application for reduction of the amount of forfeiture or apply for the rescission of a previous order for estreatment.
First instance warrants (warrants of apprehension)  :  Last Revised: Thu Aug 2nd 2012