(tho95030)
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS

SC No. 52 of 1995
(9505548)					
						BETWEEN:

							THE QUEEN
								Appellant

						AND:

							JOHN FRANCIS SABINO
								Respondent

Coram:  THOMAS J

	REASONS FOR DECISION

	(Delivered 21 December 1995)

	This is an application to the Court by Mr Stirk, counsel for John Francis Sabino, for a declaration that the issue of a warrant dated 13 December to arrest Mr Sabino was unlawful and that the warrant having been subsequently executed and Mr Sabino remanded in custody, Mr Sabino should be discharged.

	The facts in respect of this application are not in dispute and are as follows:

	On 1 November 1995, Martin CJ convicted John Francis Sabino for an offence of unlawfully possessing heroin and sentenced Mr Sabino to 12 months imprisonment.  The sentence was deemed to commence on 17 March 1995 and pursuant to s5(1)(b) of the Criminal Law (Conditional Release of Offenders) Act, Mr Sabino was released forthwith upon his entering into a recognisance to be of good behaviour with certain conditions relating to his attendance at Banyan House.  On 13 December 1995, Kerry Clark, the Senior Community Corrections Officer of the Department of Correction Services, swore an information before a Justice of the Peace stating the reasons for her belief that John Sabino had failed to comply with the conditions of his recognisance.
	On this information appears the following statement:

	"Now the said Kerry Clark makes application to issue a Summons pursuant to Section 6 of the Criminal Law (Conditional Release of Offenders) Act."

	This information with a copy of the relevant recognisance to be of good behaviour signed by Mr Sabino, were tendered as Exhibit P2.

	On 13 December a warrant for failure to comply with a recognisance was issued by a Justice of the Peace pursuant to s6 Criminal Law (Conditional Release of Offenders) Act.

	It is not in dispute that the provisions of s6(B)(b) had not been complied with.  Section 6(1A) and (1B) of the Criminal Law (Conditional Release of Offenders) Act provides as follows:

"(1A)Where an information is laid before a justice alleging that there are reasonable grounds for suspecting that a person released in pursuance of an order made under section 5 -

(a)	has failed or will fail during the period of good behaviour to comply with a condition specified in the order in accordance with subsection (1)(a)(ii) of that section;

(b)	has failed or will fail to pay, as provided in the order, the penalty or an instalment of the penalty for the payment of which he has given security; or

(c)	has been convicted, whether in or outside the Territory, of an offence committed during the period of good behaviour,

	the justice may -

(d)	issue a summons directing the person to appear before the Supreme Court, if he was so released by the Supreme Court, or before the Court of Summary Jurisdiction, if he was so released by that court, at a time specified in the summons and show cause why he should not be dealt with by that court under this section; or

(e)	issue a warrant addressed to a member of the Police Force for the arrest of the person.

	(1B)  A justice shall not issue a warrant under subsection (1A) unless -

(a)	the informant or some other person has furnished the information, and such other information as the justice requires concerning the issue of the warrant, on oath; and

(b)	the justice is satisfied that there are reasonable grounds for believing that the person to be named in the warrant will not comply with a summons under subsection (1A)(d)."

	On 13 December 1995, Constable Roberts arrested Mr Sabino in accordance with the warrant and took Mr Sabino into custody. Constable Roberts gave evidence to the Court as follows (transcript p20):

	Q.	"The basis on which you arrested Mr Sabino was pursuant to the warrant wasn't it?"

	A.	"That's correct."

	The warrant was endorsed on the back as having been executed by Constable Roberts on 13 December 1995.  A copy of the recognisance and the aforementioned warrent were tendered and marked Exhibit P1.

	On 14 December 1995, John Sabino was brought before the Supreme Court in custody.  He was represented by a solicitor from the Northern Territory Legal Aid Commission who advised the Court that he needed to obtain further instructions from his client and sought an adjournment.  There was no application for bail.  Mr Sabino was remanded in custody and his matter adjourned to the following day.  On the following day, 15 December 1995, counsel for Mr Sabino sought an order declaring the warrant invalid.  It was agreed by counsel for the Crown and counsel for Mr Sabino, that the substantive application for breach of the recognisance should be adjourned to be dealt with by Martin CJ who imposed the sentence.  Mr Sabino disputed that he is in breach of the recognisance.  A suitable date for the matter to be listed before the Chief Justice, either in Alice Springs or Darwin, was to be organised by counsel for the Crown.  In the meantime, this Court made an order releasing Mr Sabino on bail and adjourned the matter to 3.00 pm on Thursday 21 December 1995 for the purpose of fixing a date when the matter could be listed before the Chief Justice and to give a ruling in respect of the application by counsel for Mr Sabino in respect of the validity of the warrant.

Reasons for Ruling

	Kerry Clark, the Senior Community Corrections Officer, made an application pursuant to s6 of the Criminal Law (Conditional Release of Offenders) Act for a summons to issue. Instead, a Justice of the Peace issued a warrant for the arrest of Mr Sabino.

	It is trite to state that our law places great stress on the liberty of the individual.  That liberty can only be interfered with by adherence to very strict procedures and according to law.

	It is a very serious step to issue a warrant for the arrest of a person.  The issue of a warrant for arrest in these circumstances, should only be made in accordance with the procedure provided in the Criminal Law (Conditional Release of Offenders) Act.  On my reading of the provisions, the Justice of the Peace should not have issued the warrant unless the provisions of s6(1B)(a) and (b) had been complied with.  In this instance, there is not dispute that s6(1B)(b) had not been complied with.  Accordingly, I consider the warrant was invalid.

	The practical effect of this finding is that Mr Sabino should be discharged forthwith.  However, he has of course already been released on bail and the order for his discharge, in respect of the warrant, is a formality.