Most defendants come to the District Court on a summons, or because the police arrested them without a warrant. A magistrate’s warrant is the third route, and the Act surrounds it with conditions because it takes away liberty before any hearing.
The two sections
Section 49(1): Where an information is laid before a Magistrate that a person is suspected of having committed an indictable offence in the country, or that a person charged with an indictable offence cognizable by the courts is suspected of being in the country, the Magistrate may issue his warrant for the arrest of that person; or (s 49(2)) if he thinks fit, proceed by summons instead.
Section 50: Where an information is laid before a Magistrate that a person is suspected of having committed a simple offence, the Magistrate may, on oath being made before him substantiating the matter of the information to his satisfaction, instead of issuing a summons, issue in the first instance his warrant to apprehend the defendant.
Both depend on section 35(1): where a warrant in the first instance is intended, the information must be in writing and on oath. A verbal, unsworn information supports only a summons. Section 49(3) adds that even after a summons has issued the magistrate may issue a warrant at any time, before or after the return date.
The Arrest Act test
Where an information is laid before a court that there are reasonable grounds for believing (a) that a person has committed an offence within the country; and (b) that it would not be practicable or desirable to proceed against the person by summons in that his arrest is necessary (i) to ensure his appearance in court; or (ii) to prevent the continuation or repetition of the offence or the commission of a further offence; or (iii) to preserve the safety or welfare of a member of the public or of the person, the court may issue a warrant for the arrest of the person.
The Magistrates’ Manual says these more detailed requirements should be read into sections 49 to 56 of the District Courts Act. The result is a two-stage inquiry before a warrant issues: is there sworn material showing reasonable grounds to believe an offence was committed, and is there a reason why a summons will not do? A police request for a warrant simply because it is more convenient than serving a summons does not meet the second limb.
Warrants after a summons is disobeyed
| Charge | Provision | What must be shown |
|---|---|---|
| Indictable offence not triable summarily | s 93 | Proof on oath that the summons was duly served a reasonable time before the hearing, and oath substantiating the information |
| Simple offence or Schedule 2 offence | s 125(b) | Proof on oath, or by the affidavit under s 47, of due service, and oath substantiating the information; the hearing is adjourned until arrest (s 126) |
| Witness who disobeys a summons | s 68(2) | Proof of service and, except in indictable cases, that reasonable expenses were tendered |
| Person on bail who fails to appear | s 83; Arrest Act s 10 | Non-appearance at the time and place in the recognizance |
See what happens if I ignore a summons.
What a warrant must contain
A warrant (a) shall state shortly the offence or matter of the information on which it is founded; (b) name or otherwise describe the person against whom it is issued; and (c) order the police officer to whom it is directed to apprehend the defendant and bring him before a Court to answer the information (s 53). It may be directed to a named officer, to all police officers generally, or both (s 51), and where directed generally any police officer may execute it (s 52).
Under section 7 the warrant must be under the hand of the magistrate. Form 21 of the Regulation is the prescribed warrant in the first instance. Section 10(3) provides that a warrant remains in force until executed; it does not lapse on a return date. See where a warrant can be executed.
Bail endorsed on the warrant
A Magistrate, on issuing a warrant for the arrest of a person, may by endorsement on the warrant direct that the person named, on arrest, be released on bail on entering into a recognizance, with or without sureties, for his appearance in accordance with the endorsement, and the endorsement shall fix the amount in which the principal and sureties are to be bound. The recognizance may be taken under section 84 by a magistrate, a Clerk, the officer in charge of a police station or the officer in charge of the lock-up, and the defendant is then discharged.
This is worth asking for whenever a warrant is sought for a minor matter or a defendant with fixed ties. It means the person is not held until a court sits. Without an endorsement, section 55 requires the arrested person to be brought before a Court or magistrate as soon as practicable, and section 56 allows a magistrate, or for non-serious offences the Clerk or the officer in charge of the police station, to grant bail meanwhile. See after arrest on a warrant.
Where a warrant was required and none was issued
Some offences may be prosecuted only after arrest on a warrant. In The State v Tulong (1994) N1297 the accused had been arrested without a warrant for conspiracy to defeat justice, an offence for which section 128(2) of the Criminal Code forbids arrest without warrant. Doherty J held that the committal court’s proceedings are not automatic and that it is incumbent on a magistrate to check that the law has been complied with and not to rubber stamp every information. The Manual states the consequence: if the statute requires a warrant, arrest without one is illegal and renders the subsequent committal invalid.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.