Australia: Arrest warrants and bench warrants

Key Takeaway

An arrest warrant is a type of warrant that the court has power to issue to effect an arrest of a person. Its purpose is to ensure that the person named in the warrant is brought to court as soon as practicable after being arrested. This article outlines the different types of arrest warrants and the circumstances in which these warrants can be issued by a court in New South Wales.

What is an Arrest Warrant Compared to a Bench Warrant?

An arrest warrant is an order a court can make that gives the police the power to arrest a person and commit a person to prison in New South Wales. An Arrest warrant can be issued before, during or after the case has come to court. In comparison, a bench warrant is generally issued by a Judge or Magistrate sitting on a court bench whilst presiding over cases as a result of a failure by the person named in the warrant to appear in court when otherwise required to appear by law.

A bench warrant is therefore serious and is taken seriously by the courts.

There are three main types of warrants, namely an arrest warrant, a warrant to commit, and a search warrant.

Under sections s238 and s239 Criminal Procedure Act 1986 (NSW) an arrest warrant is the power a court has to issue a warrant to arrest a person in order to be taken to court as soon as practicable.

A warrant to commit is a warrant the court can issue to commit a person to a correctional centre i.e. prison (s241 Criminal Procedure Act (NSW)). This is usually considered by the court after an arrest warrant is executed resulting in the arrested person being brought before the court to be dealt with according to law. When a court is considering issuing a warrant of commitment, the Bail Act 2013 (NSW) is considered, which means that the person against whom the warrant is issued can make a  bail application  to request the court to be released on conditional liberty during the court proceedings.

Here is more on  police powers to arrest without warrant.

What are the Different Types of Arrest Warrants?

A court can issue a warrant for the arrest of a person in any one or more of the following non-exhaustive circumstances:

1. Failure to comply with a subpoena .
2. Failure to give evidence or produce a document in court.
3. Police unable to locate suspect before first court date.
4. Accused fails to appear at court.
5. Failure to appear in court for AVO hearing.
6. Failure to appear in court after you're found guilt.
7. Breach of an Intervention Program Order.
8. Breach of Community Correction Order or Conditional Release Order.
9. Accused breaches bail.
10. Accused fails to appear in District Court after being indicted.
11. Accused fails to appear in Supreme Court.

Do Arrest Warrants Show Up In Police Checks?

A police check conducted by a police officer will disclose a person's criminal history, any outstanding warrant(s) and any intelligence reports. Outstanding arrest warrants do not show up on an employer's criminal record background check.

How to Check for Arrest for Warrants in Australia? | Can you Look up Arrest Warrants?

Australia does not have a register outlining the names and details of people who have outstanding arrest warrants for the public to check. This means that States and Territories do not have a register for outstanding arrest warrants. There are other options available to check for arrest warrants, and the most effective is to contact or attend your local police station.

It would be wise to speak to a criminal defence lawyer in your state or territory for advice and guidance as to the procedure. Occasionally, it will be far less daunting and more efficient to arrange a criminal lawyer to make contact with the police to check for an arrest warrant.

Arrest Warrant Check NSW, VIC, QLD And WA

You can't look up arrest warrants. New South Wales does not have an outstanding arrest warrant register for people to be able to check for outstanding arrest warrants. It is strongly recommended to get guidance and advice from a criminal defence lawyer if you think you might have an outstanding arrest warrant in your name in NSW.

A good criminal lawyer will be able to assist you in managing your expectations and can contact the police station to find out if there is a warrant outstanding for your arrest. If an arrest warrant is outstanding then your lawyer can facilitate a smooth and less daunting process for you to be handed in at a mutually agreeable convenient time and place. This avoids police from approaching and arrested you unannounced at any time and place.

How Long Does An Arrest Warrant Last For In Australia?

An arrest warrant continues in force until it expires. An arrest warrant expires depending on the type of offence it is concerned with. An arrest warrant issued for a convicted person to be brought to court for sentencing expires at the end of 30 years after it is issued pursuant to section 237(1B) Criminal Procedure Act (NSW).

An arrest warrant concerning an indictable offence that is punishable by imprisonment for 25 years or more, including life imprisonment expires after 50 years.

An arrest warrant concerning an indictable offence that is punishable by imprisonment for under 25 years but not less than 5 years imprisonment expires after 30 years.

An arrest warrant concerning an indictable offence punishable by imprisonment for less than 5 years expires after 15 years. If the accused person is a child, the arrest warrant expires after 10 years.

An arrest warrant concerning a summary offence where the accused person is an adult expires after 10 years. If the accused person is a child, the arrest warrant expires after 5 years.

Who Issues Arrest Warrants?

Arrest warrants can generally only be issued by a Judge or Magistrate.

When Can A Court Issue An Arrest Warrant In New South Wales?

A court can order an arrest warrant on any day of the week, including a weekend (s235 Criminal Procedure Act (NSW)).

After an arrest warrant is issued, the warrant may be carried out by arresting the accused person or witness at any place within New South Wales (s238(2) Criminal Procedure Act (NSW)).

What Must Be Included In An Arrest Warrant Document?

An arrest warrant must outline the person who can execute the warrant. In addition to this, the arrest warrant must outline:

• The name or description of the persons to be arrested,
• Outline the subject-matter of the court attendance notice or reason for the arrest,
• Order that the person be arrested and brought before the Judge or Magistrate to be dealt with according to law or to give evidence or produce documents, as appropriate.

Types of Arrest Warrants

Table Summary of Types of Arrest Warrants:

Witness Fails To Comply With Subpoena: Arrest Warrant

A witness who has been served with a valid subpoena (subpoena to give evidence in court and/or for production), is legally required to comply with the subpoena.

If the witness or person who has been served with a  lawful subpoena  has failed to comply with the subpoena, the court can issue a warrant for the arrest of that witness or person under section 229(1) Criminal Procedure Act (NSW).

The court can issue an arrest warrant if the person named in the subpoena has not complied with the subpoena, and if the requirements of a valid subpoena were complied with, and there is no justification or reasonable excuse provided to the court for the failure to comply with the subpoena, pursuant to section 229(2) Criminal Procedure Act (NSW).

The court may either grant bail on conditions or issue a warrant committing the person named in the warrant to prison or other place of security with an order requiring that person to be brought before the court at a future date, time and place, if a court issued arrest warrant gets executed, which means that the person named in the arrest warrant gets arrested and is brought before the court in compliance with the arrest warrant, pursuant to section 229(3) Criminal Procedure Act (NSW).

Witness Refuses To Give Evidence: Arrest Warrant

A witness who has been lawfully subpoenaed to attend court but refuses to give evidence (or refuses to produce the requested document) without offering a just or reasonable excuse can be committed to prison by the court for a period not exceeding 7 days, pursuant to section 231(2) Criminal Procedure Act (NSW).

I.e. if the person named in the subpoena refuses to be examined on oath, or take an oath, or to answer questions after having taken an oath, or to produce the requested document)

The witness who has been committed to prison under those circumstances must be released from prison before the expiration of those 7 days if he/she consents to being examined on oath and to answer questions concerning the subject matter of the proceedings, or consents to producing the document requested, pursuant to section 231(3) Criminal Procedure Act (NSW).

If Police Cannot Locate Suspect Before First Court Date: Arrest Warrant

The Court may issue an arrest warrant for the arrest of a suspect who the police cannot locate, once the court attendance notice has been issued by the court or filed in the court, yet not served on the accused person. The court can issue this type of warrant if satisfied there are substantial reasons to do so and it is in the interests of justice to do so. This power applies to the court for charges being dealt with summarily in the local court under section 181 Criminal Procedure Act (NSW). It also applies to  indictable offences  that are in the local court committal proceedings phase but are to be dealt with ultimately in the District Court under section 54 Criminal Procedure Act (NSW).

Once arrested under the warrant, the accused person will be required to be brought before the local court as soon as practicable for the court to then consider either granting bail with or without conditions or refusing bail. If bail is refused, the court will commit the person to prison pending the outcome of the court proceedings.

Here is more on the  difference between indictable offences and summary offences.

Accused Fails To Appear At Local Court: Arrest Warrant

Section 54(3A) Criminal Procedure Act (NSW) allows the Local Court to issue an arrest warrant against the accused person who fails to appear on an allocated court date and time in the local court. This power applies to indictable offences that are not being dealt with summarily, which means cases that are currently in the committal phase in the local court which will ultimately be dealt with in the District Court.

Section 181(3A) Criminal Procedure Act (NSW) allows the Local Court to issue an arrest warrant against an accused person who fails to appear on the allocated hearing day and time in the local court. The Court can issue this warrant if satisfied there are substantial reasons and it is in the interest of justice to do so. This power applies for charges being dealt with summarily in the local court.

Once the accused person is arrested, he or she is required to be brought before the court as soon as practicable. The court is then required to either grant bail with or without conditions or commit the accused person to prison pending the outcome of the criminal proceedings.

Failure To Appear On Your AVO Court Hearing: Arrest Warrant

Section 88 Crimes (Domestic and Personal Violence) Act 2007 (NSW) permits the court to issue an arrest warrant to arrest the defendant in an apprehended violence order if the court is satisfied that the person in need of protection named in the AVO will be put at risk unless the defendant is arrested to be brought before the court. This warrant will be valid for not more than 12 months after being issued.

H3: Offender Fails To Appear After Finding Of Guilt By Court: Arrest Warrant

Section 25(2) Crimes (Sentencing Procedure) Act 1999 (NSW) gives the court the power to issue an arrest warrant to arrest an offender to be brought before the Local Court to be sentenced. The court can do this if the court decides to find the person guilty of the offence due to that person being absent in court.

Breach Of Intervention Program Order: Arrest Warrant

Sections 100R Crimes (Sentencing Procedure) Act 1999 (NSW) allows the court to issue an arrest warrant to arrest an offender if the offender fails to appear at court after the court has requested he or she appear due to a suspected breach of an intervention program order that the court had previously imposed.

The court may immediately issue an arrest warrant against that offender at the time of calling the offender to appear before it if at that time the court is satisfied that the location of the offender is unknown.

Breach Of Court Imposed Community Corrections Order Or Conditional Release Order: Arrest Warrant

Section 107C(2) and (3) Crimes (Administration of Sentences) Act allows the court to issue an arrest warrant for the arrest of an offender it suspects may have failed to comply with his or her conditions under a community corrections order (CCO). The court can issue the arrest warrant if at the time it proposes to call the offender to appear at court, the court is satisfied that his or her location is unknown. Alternatively, the court can issue this warrant if the offender has failed to appear at court after the court has called the offender to appear at court.

Section 108C(2) and (3) Crimes (Administration of Sentences) Act allows the court to issue an arrest warrant for the arrest of an offender it suspects may have failed to comply with his or her conditions under a conditional release order (CRO). The court can issue the arrest warrant if at the time it proposes to call the offender to appear at court, the court is satisfied that his or her location is unknown. Alternatively, the court can issue this warrant if the offender has failed to appear at court after the court has called the offender to appear at court.

Accused Breaches Bail: Arrest Warrant

An accused person facing criminal charges who fails to comply with his or her bail conditions by failing to attend court when required to under the bail conditions may be arrested and brought before the court if the court issues an arrest warrant under section 78 of the Bail Act 2013 (NSW).

Once that person is brought before the court in these circumstances, the court may either release him or her on the original bail conditions, vary bail conditions, or revoke bail and commit him or her to prison on remand, under section 78 of the Bail Act 2013 (NSW).

Section 312 CPA also allows the court to issue a warrant to commit that person to prison (After an arrest warrant is executed) unless the court grants that person bail under the Bail Act 2013 (NSW).

Accused Fails To Appear At District Court After Being Indicted: Arrest Warrant

If an accused person who is to stand trial fails to attend the District Court or Supreme Court once indicted, the court will issue a certificate under section 309 Criminal Procedure Act (NSW) if the prosecutor applies for one. The certificate can then be produced to the Local Court in order for the court to issue an arrest warrant against the accused person under section 310 Criminal Procedure Act (NSW). Once the accused person is arrested, he or she is required to be brought before the court as soon as practicable. The court can either grant bail or refuse bail. If bail is refused, he or she will be committed to prison pending the court proceedings, pursuant to section 311 Criminal Procedure Act (NSW).

Accused Fails To Appear At Supreme Court: Arrest Warrant

An accused person facing criminal charges in being dealt with summarily in the Supreme Court who fails to attend court to answer to the offence(s) charged can be ordered by the court under section 246 Criminal Procedure Act (NSW) to be arrested to be brought before the court. After being brought before the court, the court can either grant bail with conditions or issue a warrant to commit the accused person to prison, requiring him/her to then be brought before the court at a date, time and place specified in the order.