PETERS v ASPLUND & HER HONOUR, MAGISTRATE O'SHANE [2008] NSWSC 1061

Reported Decision : 188 A Crim R 581

New South Wales Supreme Court

CITATION : PETERS v ASPLUND & HER HONOUR, MAGISTRATE O'SHANE [2008] NSWSC 1061

HEARING DATE(S) : 1, 2 and 3 October 2008

JUDGMENT DATE : 9 October 2008

JURISDICTION : Common Law

JUDGMENT OF : Hall J at 1

DECISION : Subpoena not issued in compliance with s.222 of the Criminal Procedure Act. Warrant for plaintiff's arrest quashed.

CATCHWORDS : SUBPOENA FOR PRODUCTION OF COMPUTER IMAGE – WARRANT ISSUED FOR ARREST OF POLICE OFFICER –subpoena addressed to "South Australia Police" – not a "person named" as required by provisions of Part 3 of the Criminal Procedure Act 1986 – nil return on subpoena – warrant issued by Magistrate for arrest of a police officer invalid – statutory conditions prescribed by s.229 of the Criminal Procedure Act for issue of a warrant not established – not open to Magistrate to be "satisfied" of matters specified in s.229(2)(a) and (b) of the Act – onus of proof with respect to the issue of a warrant for arrest – no application before the Magistrate for the issue of a warrant as required by s.229(1) of the Act – no evidence to establish "no just or reasonable excuse" offered for the failure to comply – provisions of s.229 of the Act require an opportunity to establish "just and reasonable excuse" – Magistrate in breach of requirements of procedural fairness in refusing adjournment sought on behalf of South Australia Police – subpoena not issued in compliance with the Act – warrant for plaintiff's arrest invalid – order that warrant be quashed.

Criminal Procedure Act 1986 Evidence Act 1995 LEGISLATION CITED : Local Court Act 1982 Police Act 1998 (SA) Supreme Court Act 1970 Criminal Law Act 1977 (UK)