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WARRANTS

Introduction

This chapter outlines practice and procedure in relation to warrants issued by courts for the arrest of people who have either failed to attend court or pay outstanding fines, and includes an outline of procedure in relation to parole and extradition warrants.

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.

Warrant for failure to perform community service (unpaid fines)

Where a person has not paid a fine or a costs order (‘pecuniary sum’), the Fines Enforcement and Recovery Unit may take steps to recover the amount owed.

The Chief Recovery Officer of the Fines Enforcement and Recovery Unit must issue a reminder notice to the debtor [Fines Enforcement and Debt Recovery Act 2017 (SA) s 18]. A prescribed reminder notice fee will be added to and form part of the pecuniary sum in respect of which the notice is issued.

Under section 19, if a person fails, within 14 days of the reminder notice being issued, to pay or enter into an arrangement for payment under section 15, the Chief Recovery Officer may at any time do one of the following:

  • enter into an arrangement for payment, or a further arrangement, under section 15(1)(b) [see s 19(1)(c)(i)]; or
  • exercise one or more powers under Part 7 [see s 19(1)(c)(ii)]; or
  • waive payment of the amount owed in its entirety or in part [see s 19(1)(c)(iii)]; or
  • write off the amount owed if there is no reasonable prospect of recovering the amount owed or the cost of recovery exceeds the amount to be recovered [see s 19(1)(d)].

The Chief Recovery Officer may at any time investigate a debtor’s means to pay and may give them written notice requiring them to produce relevant documents or other material [see s 29(3)]. A person who, without reasonable excuse, refuses or fails to comply is guilty of an offence [s 29(4)]. The maximum penalty for this offence is a fine of $10 000.

Powers under Part 7 of the Fines Enforcement and Debt Recovery Act 2017 (SA) include:

  • making an aggregation of the amounts owed [s 35];
  • seizure of the debtor’s assets [s 36];
  • garnishment of money owing to a debtor [s 37];
  • suspension of driver's licence [s 38];
  • placing a restriction on transacting business with Registrar of Motor Vehicles [s 39];
  • suspending the operation of section 97A of the Motor Vehicles Act 1959 (SA) (applying to interstate and foreign drivers) [s 40];
  • clamping or impounding a vehicle belonging to the debtor [s 41];
  • disposing of uncollected seized vehicles [s 42];
  • seizure of number plates of debtor's vehicle [s 43];
  • the publication of the names of debtors subject to enforcement action [s 44].

Under Part 2, Division 2, the court may, on application of the Chief Recovery Officer, make community service orders where satisfied that the debtor does not have, and is not likely to have in a reasonable time, the means to pay the debt without them or their dependants suffering hardship [s 46(1)].

Where a person fails to comply with a community service order section 47 allows that a term of imprisonment may be imposed. Under section 47(4) the court may issue a notice requiring the person to appear before the court to show cause why a warrant of commitment should not be issued against them for the default or issue a warrant for their arrest [s 47(4)]. If a person fails to appear before the court a warrant may be issued for their arrest [s 47(5)]. The term of imprisonment to be imposed is determined with reference to the hours of community service to be performed [s 47(2)].

Where the debtor is a youth, the court may make an order for home detention [s 47(6)(b)].

If the court is satisfied that the failure to perform community service was trivial or that proper grounds exist for excusing the failure, the court may refrain from issuing a warrant of commitment and may extend the period of the order (however not for more than 6 months) or impose a further order if the order has since expired. The court may also cancel the entire number of unperformed hours or a part thereof [s 47(8)].

GENERAL ADVICE
Duty solicitors will only be called upon to give persons in this category some general advice, for example as to payment arrangements or the possibility of community service (where the person has no means of meeting his financial obligations) and the Chief Recovery Officer’s investigation and enforcement powers.

Interstate warrants for unpaid fines

The Service and Execution of Process Act 1992 (Cth) governs procedure in relation to interstate warrants for unpaid fines. An interstate warrant for an unpaid fine may be a warrant of commitment. The power to issue warrants of commitment for unpaid fines no longer exists in South Australia. As of 15 June 2011, there were also significant changes to procedure in relation to the enforcement of interstate fines in accordance with the Service and Execution of Process Amendment (Interstate Fine Enforcement) Act 2010 (Cth). The procedure now involves the registration and enforcement of interstate fines as if they were fines incurred in the registering state and the abolition of remands in custody and penalties of imprisonment.

The 2011 amendments have introduced a mechanism for the registration of unpaid interstate fines in another state when the person is believed to be a resident of that state [see Service and Execution of Process Act 1992 (Cth) ss 112 and 113; s 110 for definitions]. Registration of an interstate unpaid fine allows that fine to be enforced in the registering state ‘as if the fine had been imposed on the offender by a court of the registering State ’ and the fine can no longer be enforced in the originating state [see s 114; s 115 for payment received by originating state; s 116; s 118 for cancellation of registration; s 119 for effect of cancellation of registration]. Any challenges to the imposition of a registered fine must be made in accordance with the laws of the originating state and the offender must notify the registering state of this process [see s 120 for challenge to the imposition of a fine].

Of particular note:

A registered fine cannot be enforced by the imposition of a sentence of imprisonment on the offender despite the enforcement laws of the registering State [see Service and Execution of Process Act 1992 (Cth) s 114(4)].

COURT SUBMISSIONS
The procedure is usually very straightforward. The duty solicitor should inform the Court of the amount outstanding, where and how the fine was incurred, and the person’s financial circumstances. The duty solicitor should then nominate the length of time reasonably required by the person to discharge the fine in full.

Parole warrants

Where the presiding or deputy presiding members of the Parole Board suspect on reasonable grounds that a person has breached a condition of their parole, they may (of their own motion or upon application of another member of the Parole Board, the Chief Executive of a police officer) issue a warrant for the apprehension and detention of the person [see Correctional Services Act 1982 (SA) ss 76(1)(b), (2)(b)(i) and 76A(1)(a)]. Upon apprehension, that person will be remanded in custody until such time as he or she appears before the Parole Board [see ss 76(4) and 76A(2)]. If the presiding or deputy presiding members of the Parole Board are unavailable, the other Parole Board members, the Chief Executive or police officer can make the application to a Magistrate [see ss 76(2)(b)(ii) and 76A(1)(b)]. A police officer may also arrest a person without a warrant (but with the authorisation of a police officer above the rank of Inspector) if they reasonably suspect that the person has breached their parole, see Arrest for breach of parole.

NOT ELIGIBLE TO APPLY FOR BAIL
It is rare for a duty solicitor to deal with a parole warrant. If a person in custody is aware of the existence of a parole warrant, no application for bail need be made.

Bench warrants

These are warrants of apprehension issued in a higher jurisdiction (either the District Court or the Supreme Court). They are issued because the defendant either failed to answer bail in that jurisdiction following committal of an indictable matter or failed to answer a summons to appear in relation to estreatment of bond proceedings [see Bail Act 1985 s 6(5) and Bail chapter].

ASSISTING A PERSON WITH A BENCH WARRANT
A duty solicitor may on occasion have to deal with defendants who are in custody in relation to a fresh arrest on a summary matter where a warrant check has disclosed that there is also a bench warrant in existence for an unrelated matter. They can do nothing about the bench warrant. The defendant will have to be conveyed to the higher court to appear on that matter following the appearance in the Magistrates Court.

However, an application for bail should nonetheless be made in relation to the summary court matter(s) if appropriate. Otherwise, were the defendant to be bailed subsequently in respect of the higher jurisdiction charges, he or she would remain in custody until a further bail application could be made in relation to the summary matter(s).

In practice there may be little merit in a bail application in the lower court given that the defendant may be viewed as a bad bail risk in light of the prior absconding (this will, of course, depend on the circumstances of the non-appearance). The defendant may be better advised to delay an application for bail in respect of the Magistrates Court matters until their solicitor has had time to assess the whole situation and to negotiate bail conditions for both sets of matters.

Extradition warrants

Interstate extradition procedures are governed by the Service and Execution of Process Act 1992 (Cth) pt 5 [see also Police Powers and Forensic Procedures chapter]. Under the Act, a person named in an extradition warrant issued in any State may be arrested in accordance to that warrant in another State [see Service and Execution of Process Act 1992 (Cth) s 82(1)]. Upon apprehension, that person must be brought before a Magistrate of the State in which they were apprehended along with the warrant or a copy of the warrant [see ss 83(1) and 83(2)].

Different court procedures apply depending on whether or not the person subject to the application is defined as a “person under restraint”.

Persons in prison

A person who is in prison may not be apprehended on an extradition warrant [see Service and Execution of Process Act 1992 (Cth) s 82(2)]. A person who is in prison is not considered a “person under restraint” in accordance with the Act [see s 3 for definition]. Thus a person in custody on remand or servign a sentence may not be extradited to another State.

Persons determined to be “under restraint”

The Magistrate, at the first hearing of the application for interstate extradition, must determine whether the person falls under the definition of a “person under restraint” [see Service and Execution of Process Act 1992 (Cth) s 84(1), 84(1A), 84(2) and 84(3)]. Persons considered to be under restraint are those who are:

  • on bail;
  • on conditional release from prison before the expiration of a term of imprisonment (including being on parole, on conditional licence, work-release and home detention);
  • subject to supervision under a probation order (such as a supervised bond);
  • serving a period of home detention or a term of imprisonment under a periodic detention order;
  • undertaking a community service, community based, attendance, or work and development order; or
  • have their movements restricted in accordance with a law or a court order which is inconsistent with compliance with a subpoena [see Service and Execution of Process Act 1992 (Cth) s 3 for extended definition].

Where a person is deemed to be a person under restraint, the procedure prescribed in section 84 of the Act applies. The Magistrate may adjourn the proceedings (for up to 7 days) and remand the person on bail or in custody for the period of the adjournment [see s 84(4); s 84(5) for applications for adjournment; s 84(6) for adjournment procedure]. During the adjournment period, the Department of Correctional Services is notified of the execution of the warrant and upon commencement of proceedings the supervisor of the person under restraint may make submissions to the Magistrate [see ss 84(4)(a)(iii) and 84((4)(b); s 84(10) for definition of supervisor]. Likewise, any relevant state or federal police officer must be notified of the execution of the warrant and be afforded an opportunity to make submissions to the Court.

Persons not “under restraint”

Where the person is not “under restraint”, section 83 of the Service and Execution of Process Act 1992 (Cth) applies.They are brought before a Magistrate in custody and the warrant or a copy is produced to the Magistrate. If it is not produced the Magistrate may either:

If the warrant is still not produced when proceedings resume, the Magistrate may order the person’s release forthwith or allow a further adjournment if there is reasonable cause to do so [see Service and Execution of Process Act 1992 (Cth) s 83(4)]. The total time of the two adjournments together must not exceed 5 days [see s 83(5)]. If the warrant or a copy of the warrant is not produced following a second adjournment the Magistrate must order that the person be released [see s 83(7)].

BAIL APPLICATION
The duty solicitor may apply for a defendant's release on bail for the duration of any adjournment. Such an application for bail is determined under the normal criteria of section 10 of the Bail Act 1985 [see Service and Execution of Process Act 1992 (Cth) s 88]. Bail is invariably opposed on the grounds of the seriousness of the offence and the incentive to abscond. However, where the defendant has personal matters to settle before extradition and can provide guarantor(s), residence, frequent reporting to police and/or cash surety, the Court may be persuaded to grant bail.

PROCEDURAL RULES

During the process of the extradition hearing the Magistrate is not bound by rules of evidence and subsequent hearings may be conducted by other Magistrates [see Service and Execution of Process Act 1992 (Cth) s 83(14)].

Invalid extradition warrants

The Magistrate must order the person’s release should the warrant be determined invalid [see Service and Execution of Process Act 1992 s 83(10)].

ALWAYS CHECK THE WARRANT
The duty solicitor should always ask to see the warrant to check all relevant details on it. Check that the name of the accused is accurate; that the warrant is appropriately signed by an authorised officer and so forth.

Bail for extradition orders

A person may remain on bail with a condition he or she return to the other state as soon as reasonably practicable and appear at such time and place in that jurisdiction [see Service and Execution of Process Act 1992 (Cth) ss 83(8)(a), 84(7), 85 and 85A]. Should the Magistrate determine the person must remain in custody, the subsequent court order must include a condition that the person be taken to a specified place in the place of the issue of the warrant [see ss 84(8) and 83(8)(b)]. The Magistrate may suspend an order for a remand into custody pending transport to the other state for a specified period [see ss 83(11) and 83(12)].

Supreme Court review

An application can be made to the Supreme Court to review an order made in accordance with section 83 of the Act within 7 days of the making of the extradition order [see Service and Execution of Process Act 1992 (Cth) ss 86(1) and 86(2)]. The Supreme Court may vary, confirm or revoke the extradition order [see s 86(8)].