[The Service and Execution of Process Act of 1992 repealed the Service and Execution of Process Act of 1901. It came into effect on the 10th of April 1993. The transitional provisions contained in Act 166 of 1992 mean that warrants issued under the old Act continue to be dealt with under that Act. The old provisions are set out after the new provisions for information.]

1 When a person is arrested on an interstate warrant for non-payment of a fine, the Court may not merely "adjourn to enable payment".

2 When the police have executed the warrant and the defendant is brought before the Court, sns 110 to 126 of the Service and Execution of Process Actapply.

2.1 The Court must satisfy itself that the warrant refers to the arrested person.(Sn 115(2)) In this regard see sn 115(4) - the Court may assume it is the same person if the defendant does not call evidence and satisfy the Court to the contrary.

2.2 The Court must satisfy itself that the amount (or some part of it) is still outstanding. Again it may rely on the warrant unless satisfied by evidence to the contrary.

2.3 If satisfied of 2.1 and 2.2 above the Court must order that the defendant be committed to gaol for the appropriate period. It may, however, then suspend the order of committal to allow time for payment.

If one merely adjourns the warrant and the defendant neither pays the amount or appears on the adjourned date, the warrant of apprehension has been executed, there is no warrant of commitment to take its place and the defendant cannot be reapprehended.

2.4 Where there is a dispute as to liability on question 2.1 and 2.2 above and the defendant needs time to marshall evidence he may be released on bail. (sn 114)

2.5 A single Justice of the Peace may not deal with these matters. (sn 111)

2.6 The following is the form of endorsement that should be used. It may of course be modified as circumstances require - eg a simple suspension for a period to allow payment in full rather than by instalments.

Being satisfied that the person before the Court is the person on whom the fine was imposed, and not being satisfied that the liability to pay the fine has been fully discharged, ORDER that by reason of such non-payment the said person be committed to gaol for ...... days unless he is sooner released in accordance with the law.

ORDER suspending the execution of the above order of committal for the purpose of allowing the said person to make payments of the amounts referred to in this and other warrants of apprehension with respect to which he has been brought before me this day at the rate of $..... every .......... weeks, the first payment to be made on the ....... day of ................... 19........

Stipendiary Magistrate
....../....../19...

Court Registrars do not have the power to consider applications for Community service. Such applications must be dealt with by a Magistrate.

The procedure recommended to be adopted in relation to interstate fines is as follows:-

1 The court will follow the usual practice of making a determination as to whether the person before the court is the person named in the warrant, and whether the person's liability to pay the fine has been discharged.

2 If satisfied on both of those points in 1, the court should inquire as to whether the person wishes to work the warrant of by community work. If the person does then they should be ordered to attend at the Registry and complete an application form with the usual Statutory declaration that is used for State offences. The matter should either be held in the list or remanded for this to take place.

3 After the statutory declaration has been completed it is the Court (although guided by Registry staff practices in relation to State matters) that decides whether the person qualifies for community work.

4 If satisfied that community work is appropriate, the Court should make the usual order set out about giving sufficient time for the person to complete the hours of community work. The file should also be endorsed that the person has been certified as qualifying for community work.

5   NOTE

It should be made clear to any person applying for community work on interstate fines that the Service and Execution of Process Act does not give formal recognition to the performance of community work as a means of expunging the penalty. That is to say, that while an interstate warrant may be removed from the SA records by virtue of the community work, the interstate court from which the warrant issued technically may refuse to recognise the validity of the default that has been served, in which case a warrant may remain active in that State. While it is likely that interstate courts will honour what courts in this State are doing, persons seeking to undertake community work should be warned of that possibility before lodging their applications.

Old Provisions under 1901 Act

1 When a person is arrested on an interstate warrant for non-payment of a fine, the Court may not merely "adjourn to enable payment".

2 When the police have executed the warrant and the defendant is brought before the Court, sn 26F of the Service and Execution of Process Act applies.

2.1 The Court must satisfy itself that the warrant refers to the arrested person. In this regard see sn 26F(2) - the Court may assume it is the same person if the defendant does not call evidence and satisfy the Court to the contrary.

2.2 The Court must satisfy itself that the amount (or some part of it) is still outstanding. Again it may rely on the warrant unless satisfied by evidence to the contrary.

BOTH OF THESE FINDINGS SHOULD BE NOTED ON THE FILE.

2.3 If satisfied of 2.1 and 2.2 above the Court must order that the defendant be committed to gaol for the appropriate period. It may, however, then suspend the order of committal to allow time for payment.

If one merely adjourns the warrant and the defendant neither pays the amount or appears on the adjourned date, the warrant of apprehension has been executed, there is no warrant of commitment to take its place and the defendant cannot be reapprehended.

2.4 Where there is a dispute as to liability on question 2.1 and 2.2 above and the defendant needs time to marshall evidence he may be released on bail. (sn 26E(6))

2.5 A single Justice of the Peace may not deal with these matters. (sn 26C)

2.6 The following is the form of endorsement that should be used. It may of course be modified as circumstances require - eg a simple suspension for a period to allow payment in full rather than by instalments.

Being satisfied that the person before the Court is the person on whom the fine was imposed, and not being satisfied that the liability to pay the fine has been fully discharged, ORDER that by reason of such non-payment the said person be committed to gaol for....days unless he is sooner released in accordance with the law.

ORDER suspending the execution of the above order of committal for the purpose of allowing the said person to make payments of the amounts referred to in this and other warrants of apprehension with respect to which he has been brought before me this day at the rate of $...every.......weeks, the first payment to be made on the day of...........19....

 

....../....../19...... Stipendiary Magistrate