324. Warrants

324. Warrants

For the purposes of this Part, the Court of Appeal may issue any warrant necessary for enforcing the orders of the court.

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87. Limitations on sentencing in absence of accused

87. Limitations on sentencing in absence of accused

(1) If the Magistrates' Court proceeds to hear and determine a charge in the absence of the accused and finds the accused guilty, the court must not make a custodial order under Division 2 of Part 3 of the Sentencing Act 1991.

(2) If the Magistrates' Court finds an accused guilty in the absence of the accused on the basis of a preliminary brief-

(a) the court must not make an order under Division 4 of Part 3 of the Sentencing Act 1991 for a fine exceeding 20 penalty units and the total sum of orders for fines must not exceed in the aggregate 50 penalty units; and

(b) the total sum of orders made under Divisions 1 and 2 of Part 4 of the
Sentencing Act 1991 for the payment of restitution or compensation must not exceed $2000.

Note

In addition to this section, the court cannot make an order that requires the consent of the accused to its making, for example, a community-based order.

(3) If, at any time during the hearing, the Magistrates' Court considers that the charge, if proven, is likely to result in an order prohibited by
subsection (1) or (2) or an order that requires the consent of the accused,
the court-

(a) must adjourn the proceeding to enable the accused to attend or to be brought before the court to answer to the charge; and

(b) may issue a warrant to arrest the accused.

(4) If the Magistrates' Court finds a charge against a person proved and imposes a sentence in the absence of the person, the court must serve written notice on the person, at the address of the person on the register kept under section 18 of the Magistrates' Court Act 1989, of-

(a) the order of the court; and

(b) their right to apply for a rehearing of the charge.

Note

Part 3.4 provides for a rehearing in certain circumstances. In particular, section 94 provides for automatic rehearing in certain cases.

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81. Non-appearance of accused charged with indictable offence

81. Non-appearance of accused charged with indictable offence

If an accused does not appear in answer to a summons to answer to a charge for an indictable offence which has been served in accordance with this Act, the Magistrates' Court may issue a warrant to arrest the accused.

Notes

1. Section 25 sets out the consequences of failing to appear in answer to a notice to appear.

2. Section 328 sets out who may appear on behalf of an accused.

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80. Non-appearance of accused charged with summary offence

80. Non-appearance of accused charged with summary offence

(1) If an accused does not appear in answer to a summons to answer to a charge for a summary offence, the Magistrates' Court may-

(a) if the summons was served in accordance with section 394 (ordinary service), direct that the accused be served personally with the summons; or

(b) issue a warrant to arrest the accused; or

(c) proceed to hear and determine the charge in the absence of the accused in accordance with this Part; or

(d) adjourn the proceeding on any terms that it considers appropriate.

Note

Section 328 sets out who may appear on behalf of an accused.

(2) If an accused has been charged with a summary offence and fails to attend in answer to bail, the Magistrates' Court may-

(a) proceed to hear and determine the charge in the absence of the accused in accordance with this Part; or

(b) adjourn the proceeding on any terms that it considers appropriate-

without prejudice to any right of action arising out of the breach of the bail undertaking.

(3) If the Magistrates' Court proceeds to hear and determine a charge under
subsection (1)(c) or (2)(a), the court may dispense with or vary any requirement imposed by or under this Part.

Note

See section 25 for consequences of failing to appear in answer to a notice to appear.

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53. Mention hearing

53. Mention hearing

At a mention hearing, the Magistrates' Court may-

(a) if the offence is an indictable offence that may be heard and determined summarily, grant a summary hearing;

(b) proceed immediately to hear and determine the charge;

(c) fix a date for a contest mention hearing;

(d) fix a date for a summary hearing of the charge;

(e) make any other order or give any direction that the court considers appropriate.

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12. Court may issue summons or warrant to arrest

12. Court may issue summons or warrant to arrest

(1) On the filing of a charge-sheet under section 6, an application may be made to a registrar of the Magistrates' Court for the issue of-

(a) a summons to answer to the charge directed to the accused; or

(b) a warrant to arrest in order to compel the attendance of the accused-

unless a notice to appear has been served on the accused under Division 2.

(2) An application under subsection (1)(b) must be made by the informant
personally but an application under subsection (1)(a) may be made by the
informant or a person on behalf of the informant.

(3) An application under subsection (1) may be made by the applicant in person or by post.

(4) On an application under subsection (1), the registrar must, if satisfied that the charge discloses an offence known to law, issue-

(a) a summons to answer to the charge; or

(b) subject to subsection (5), a warrant to arrest.

(5) A registrar of the Magistrates' Court must not issue in the first instance a warrant to arrest unless satisfied by sworn evidence, whether oral or by affidavit, that-

(a) it is probable that the accused will not answer a summons; or

(b) the accused has absconded, is likely to abscond or is avoiding service
of a summons that has been issued; or

(c) a warrant is required or authorised by any other Act or for other good cause.

Notes

1. If an accused fails to appear in answer to a summons, sections 80 and 81 provide for the issue of a warrant to arrest the accused. Section 330 provides for the issue of a warrant to arrest a person who has been remanded in custody or granted bail to attend a hearing but fails to attend.

2. Section 29 of the Magistrates' Court Act 1989 enables a magistrate to exercise the powers of a registrar to issue a summons or warrant.

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