District Court New South Wales Medium Neutral Citation: R v Biasi [2017] NSWDC 190 Hearing dates: 28 July 2017 Decision date: 28 July 2017 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Rescind order made 29 May 2017 for the preparation by the ODPP of a draft stated case under s.5B of the Criminal Appeal Act 1912 (NSW) Catchwords: Bench warrants – arrest warrants – Legal effect of endorsement that subject of warrant not to be granted further bail before being brought to the Court issuing the warrant Legislation Cited: Trustee Act 1925 (NSW); Criminal Procedure Act 1986 (NSW); Crimes (Sentencing Procedure) Act 1999 (NSW); Criminal Appeal Act 1912 (NSW); Supreme Court Act 1970 (NSW); and Uniform Civil Procedure Rules 2005 Cases Cited: DPP v Jones [2017] NSWCCA 164 Category: Principal judgment Parties: Regina (Crown) Gianluca Biasi (Offender) Representation: Ms Knowles (Crown Prosecutor) No appearance (Offender) Solicitors: ODPP Parramatta (Crown) File Number(s): 2015/38676 Publication restriction: Nil Judgment 1. This matter is in the list today in order for the DPP to file a draft stated case pursuant to directions I made on 29 May 2017. 2. Before dealing with that matter, some preliminary observations might be appropriate. 3. Our system of justice is firmly based on the adversarial system in which judicial officers make determinations after hearing competing evidence and consequential submissions – except where orders are made by consent, and even then, in some circumstances, the Court is not bound to give effect to the underpinning agreement between the parties (for example, an approval of civil settlements where the plaintiff is subject to a relevant disability; or an application for a judge alone trial where the application is made less than 28 days before the trial date). 4. It is an important - if not essential – aspect of that system that the essential and relevant parties to the dispute – and only those parties – are joined to the proceedings. 5. Relatedly, except in very limited circumstances (for example, where a trustee may seek judicial advice from the Supreme Court pursuant to s 63 of the Trustee Act 1925), it is also important that an appropriate contradictor be joined to the proceedings. 6. There is no express legislative basis for the issuing of a bench warrant (although its existence is acknowledged in legislation, for example, s 312 of the Criminal Procedure Act 1986). 7. Rather, a bench warrant is part of the incidental common law powers of a Court. 8. In addition to a bench warrant, there is a (different) statutory based "arrest warrant" – see Part 4 of the Criminal Procedure Act. In so far as that type of warrant is concerned, I note that although Part 4 is concerned with the issuing of warrants for "accused persons", it may also be invoked for the arrest of a person named in a subpoena who does not comply with that subpoena (see s.229 of the Criminal Procedure Act). What, if any, meaningful distinction exists between a common law bench warrant and the statutory arrest warrant is something about which I have not had the benefit of submissions – and thus decline to express any further opinion. 9. The circumstances in which a warrant of either kind are usually issued include: 1. If a person fails to answer a subpoena – whether in civil or criminal proceedings; 2. If a person fails to answer her or his bail; 3. If a person fails to appear for sentence in circumstances where bail was dispensed with; or 4. If a person fails to appear on the call up of a bond. 1. With these preliminary remarks, I return to the purpose of today. 1. On 15 December 2015, I sentenced Gianluca Biasi for the offence of aggravated break and enter and commit serious indictable offence. 2. I imposed a sentence of 9 months imprisonment - which I suspended pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999. 3. On 24 March 2017, that bond was called up following receipt of a breach report from the Local Court and a further listing was fixed for 5 May 2017. 4. There was no appearance by Mr Biasi on 5 May 2017 and, accordingly, a warrant for his arrest was issued. At the time that order was made, I did not specify the type of order to be invoked. (I had in mind a bench warrant). In accordance with what I understand is common procedure, an "arrest warrant" was issued. The warrant was endorsed (pursuant to an "order" I made when ordering a warrant be issued) that Mr Biasi was not to be granted further bail until he was brought before the District Court. 5. The warrant was executed on 6 May 2017. Contrary to the endorsement on the warrant, Mr Biasi was taken before a Local Court Magistrate who granted him bail to appear before this Court on 11 May 2017. Mr Biasi answered his bail on that date and in due course the call up was disposed of. 6. During the disposition of the call-up, I expressed concern as to the legal effect of the endorsement on the warrant – an endorsement which anecdotal "evidence" suggests is regularly made by some (at least) Judges of this Court. 7. It appeared to me that this might be an appropriate situation in which some authoritative guidance from the Supreme Court might be given: if the endorsement had legal effect, the Local Court ought to be aware of it; if the endorsement had no legal effect, the Judges of this Court might consider not making them or recasting them as recommendations – in this latter context, there is a well-established rule of law that a Court should not make an "order" which is of no legal effect. 8. To this end, I made directions on 29 May 2017 for the Office of the DPP to prepare a draft stated case pursuant to s 5B of the Criminal Appeal Act 1912. That draft was to be available to the Court for consideration today. 9. On 26 July 2017, that aspect of the proceedings was informally listed for mention before me at which time I was provided with a letter from the Director of Public Prosecutions which has been marked for identification 1. 10. The letter provided an explanation as to why a draft would not be available today. 11. Having considered the submissions in MFI 1, I accept that, in the events which have occurred, s 5B is not properly engaged. (Nor, for completion, is s.5A). 12. I'm not yet persuaded, however, that an endorsement such as I have described is of no legal effect. 13. In this regard, I am not yet persuaded that there are "parallels" (as was submitted in MFI#1) between the present issue and that which arose in DPP v Jones [2017] NSWCCA 164 – not least because of the jurisdictional commonality which obtained in that case. 14. It still seems to me to be desirable for this issue to be authoritatively determined if there be some other mechanism by which that could be achieved other than by s 5B of the Criminal Appeal Act. 15. I have considered two such possible mechanisms. 16. First, given that a question of bail does not invoke a Court's criminal jurisdiction I considered a referred question of law or stated case under Part 6, Division 8 of the Uniform Civil Procedure Rules 2005. 17. Secondly, I considered an application for declaratory relief in the Supreme Court (cf s 75 of the Supreme Court Act 1970). 18. Unassisted by submissions, both options seem to raise problems such as the appropriate party to bring the proceedings and the appropriate contradictor. 19. In the circumstances I direct that no further action be taken in relation to the stated case foreshadowed on 29 May 2017. 20. I order that the order for the preparation of a draft stated case be rescinded. 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