Victorian
Demerit points law, licence suspension and the legal
options for drivers.
Warrants
of Arrest
You
are probably reading this because you
are freaking out at the thought of a
warrant of arrest being issued in your
case. This page explains what a bench
warrant is.
There are two ways that a person can be
asked to attend court for a criminal
offence: the police can serve a charge and
summons, or the police can arrest a
person and then serve a charge. In most
motor traffic cases the police serve the
accused with a summons to attend court.
In most traffic cases the police will
serve a charge and summons, which in the
case of jailable offences is
usually served personally on the
accused. For
non-jailable offences it is often
served by post. However, if
the police can not locate a person to
serve them with a charge and summons
then the police can apply to the court
for a warrant of arrest. In this
situation, the warrant is issued because
the police were unable to serve you with
a charge and summons. An arrest warrant
of this type is issued by the court
registrar after receiving evidence from
the police about their attempts to
locate and serve a summons on the
accused.
Alternatively, a warrant of arrest can be
issued by the Magistrate after a summons
has been served on an accused who does not
attend court in answer to the summons.
This type of warrant is called a bench
warrant and can be issued by the
Magistrate in court in any situation where
an accused has been served with a summons
and there is no appearance at court by or
on behalf of the accused. It is very
common for Magistrates to issue bench
warrants.
Most people who are served with a court
summons for a traffic offence are under no
obligation to attend court. On the face of
the summons you will see two boxes "You
should go to court" and "You must go to
court". In 99% of traffic cases the
"Should go to court" box is ticked. And it
is true - you should go to court. But you
don't have to. You commit no offence by
ignoring that type of summons. In some
cases the accused is charged with an
indictable offence, which is more serious,
and the "You must go to court" box will be
ticked.
When a person who is on summons doesn't
appear at court either in person or by
legal representative the Magistrate has
options. Sometimes the court will hear the
case in the absence of the accused, or it
can adjourn the case to a later date, or
if the court feels that the accused should
be required to attend court, then the
magistrate can issue a bench warrant. The
only way that a magistrate can oblige a
person to attend court in person is to
issue a warrant of arrest.
While a summons is an invitation to come
to court, a bench warrant turns that into
an obligation to attend the court.
Once a warrant has been executed (i.e. you
have been arrested and bailed) you must
attend the court at each date your case is
listed. That is the sole difference
between having a warrant issued and not
having a warrant issued. If turning up at
court was something you already planned to
do, then nothing has changed. After you
are arrested, you will be bailed on your
own undertaking to attend court on a
specified date. For a bench warrant, the
police will not ask you or anyone else to
provide a surety.
If you did not freak out when you knew the
police might knock on your door to serve
you with a charge and summons then there
is no need to freak out at the thought
that the police might knock on your door
to execute a bench warrant. It is almost
exactly the same thing - a notice to
attend court - except this time you
have to go to the police station with them
to sign off on it.
Every year many of my clients have bench
warrants issued after they have been
charged with traffic offences but didn't
attend the court. Sometimes they have
intentionally failed to appear at court.
Often there are good reasons for doing
that. Others spend a lot of time
needlessly worrying about an arrest
warrant when it unexpectedly occurs. The
time to worry was when the criminal
charges were being filed and served - not
at the thought of a bench warrant which is
a trivial formality compared with the
laying of charges. A warrant of
arrest has absolutely no adverse impact
whatsoever on your court case, or your
defence, or your sentence, or your
criminal record, or your life, on
your job or your travel - except that it
will oblige you to attend a Magistrates
Court on a specified date. If you have
ever ignored a parking fine or speeding
fine long enough for it to become an
enforcement warrant, you have already been
in a significantly worse situation than
anyone who is facing a bench warrant.
The
bench warrant authorises the police to
arrest you and bring you before the
court. In practice the police are likely
telephone you and ask you to go to the
police station to sign the bail notice.
Their other option is to knock on your
door and see if you are at home. If you
are, they will take you to the police
station even if that is not convenient to
you.
You are not obliged to present yourself at
the police station to have the warrant
executed. Your option is to go to the
police station at a time convenient to
you, or ignore the police and wait for
them to find you. If they cannot find
you at your last known address, the
warrant will be lodged in the police
computer system. Then it could be ages
before the police locate you, usually when
they next intercept you driving a car
or when you next commit an offence.
It is becoming increasingly common for the
police to include a letter with the charge
and summons advising the accused to attend
the court or else a bench warrant will be
issued. Some police also send intimidating
letters to the accused after a bench
warrant has been issued.
The purpose of these letters is to
scare the accused into attending court so
a bench warrant is not required, or to
attend the police station quickly so the
police don't have to drive over to their
house and knock on their door.
Usually the police who contact you to
execute the bench warrant will complain to
you about your failure to attend court.
They will imply that you have stuffed
up. They are whinging because they
now have extra work to do that they feel
is "unnecessary". They will say "you
should have gone to court", because if you
had been at court then they would not be
knocking on your door trying to find you.
They
will intimidate you to try to make you
come to the police station because they
don't want to have to drive over to your
place several times trying to catch you
at home. Regardless how much
they complain, be assured you have done
nothing wrong. You need not be in the
slightest bit concerned that the
police have to spend some time dealing
with the court process that they
instigated. In most cases it is the police
prosecutor at court who has requested the
warrant to be issued. Prosecutors know
full well that by choosing the warrant
option they are giving the informant this
extra work.
When
the warrant is executed the police
need to be able to prove that they
have arrested the right person. So
they will require ID. Sometimes they
might also request fingerprints or
photographs. This is so they can prove
in court that they arrested the
correct person in the event that you
still do not turn up at court (failing
to turn up to answer bail would then
be an offence).
When you sign the bail notice it will
state your new court date. You can try
to negotiate the timing of the new
court date with them so it is on a
date that suits you. It needs to be a
date that you are able to attend the
court. You
should be polite and cooperative, say
as little as possible and accompany
them to the police station. Your
stay at the police station will take
about 15 minutes. If you are pleasant
about it, the police might offer to
drive you home afterwards. If you refuse
to sign a bail notice they won't give
you bail - you will be taken to court
the next time it is open. So you should
sign a bail notice.
If you want the warrant executed as soon
as possible, you can call the informant
(or attend at any police station) and
ask for it to be executed that same day.
In many cases I have attend the police
station with the client on the morning
that we have arranged to attend the
court and requested the accused be
bailed to attend court on the same date.
The
downside to getting a bench warrant is
usually extremely minimal. The
potential up-side is that your case
will now be delayed for many months -
sometimes years. It is
important to recognise that a bench
warrant is not issued because you have
done anything wrong. It is issued because
there is no alternative way for the
magistrate to require you to attend the
court.
So if you are freaking out about the
warrant, then you are far too late. The
serious part of your case was the filing
and service of the charges. Deciding which
method is used to bring you before the
court is a relatively trivial part of the
court process. Provided you are present in
court when the case is next listed no
magistrate will care one iota whether a
warrant has been issued in your case or
whether you appear on summons or on bail.
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