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  • Writer's pictureGeoff Harrison

Subpoenas


Criminal Barrsister, Best Barrister, Best Criminal Barrister, Criminal Lawyer, Criminal Solicitor, Subpoena, Set aside a subpoena, issue of subpoena, going to court, attendance at court, compulsion of subpoena, conduct money, time requirement re subpoena, compliance with subpoena

Published by Geoff Harrison | 13 November 2023


A subpoena is an order of the court requiring a party to attend court, produce documents or to attend court and produce documents (Subpoena duces tecum). Subpoenas can be issued by police, the Director of Public Prosecutions or an interested party: see s222 Criminal Procedure Act. In certain circumstances leave of the court is required to file a subpoena such as:

For the court to allow a subpoena for the production of documents, the subpoena must not be a fishing expedition ie. hoping that some evidence will turn up. The relevance or the legitimate forensic purpose for the issuing of a subpoena is referred to as the "on the cards" test ie. that material relevant to the case will turn up (see Saleam and Alister).


Failure to comply with a subpoena can be contempt of court (see: r33.12 and Contempt of Court). Failure to attend court in criminal proceedings can also lead to the court issuing a warrant for a person's arrest: s229 of the Criminal Procedure Act 1986.


A party to the issuing of a subpoena is a party with sufficient interest relating to the subpoena (see: Sully v Sully). A party can apply to have a subpoena set aside as per s227 of the Criminal Procedure Act 1986, r 6.7 of the Local Court Rules 2009, s53.23 of the District Court Rules1973 and rule 33.4 of the UCPR 2005. A subpoena can be set aside at common law if it is too vague or oppressive (see: Commissioner for Railways v Small) or if no conduct money has been provided.


For a party to be compelled to comply with a subpoena there must also be proof of proper service of the subpoena within the required time frames (at least 5 days prior to the hearing), the rules relating to time and service are:


A party to the proceedings may seek short service of a subpoena and abridge the time and date for compliance: s223(2) Criminal Procedure Act 1986. A party can also seek alternative service for a subpoena eg. reg 10.14 UCPR.


To compel compliance with a subpoena there must also be reasonable conduct money provided with the service of the subpoena. Some organisations such as the NSW Police have set fees however, the relevant rules relating to this are:

  • Local Court Rules 2009 re attendance of a witness: reg. 6.5

  • District Court Rules 1973 re attendance of a witness: r53.21

For service of a subpoena outside of NSW see: Service and Execution of Process Act 1992 (Cth)


For restrictions relating to the use of subpoenaed material from separate proceedings see: The Harman Undertaking


Other Sources:


Cases:

Extracted Legislation:


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