Do I have to attend the court if subpoenaed?

A subpoena is a court order to attend court, produce documents or both.

Although it is normally prepared and filed by the defence or prosecution in criminal proceedings, it is important to be aware that the failure to comply can amount to a breach of a court order, and have serious consequences.

Here is an outline of a person’s rights and responsibilities as a subpoenaed witness in NSW local court criminal proceedings.

Types of subpoenas

There are three main types of subpoenas in NSW:

• Subpoenas for production – which require materials to be delivered to the court registry,
• Subpoenas to attend court – which require personal attendance to testify in court, and
• Subpoenas for both of the above.

Formal requirements

Subpoenas must comply with certain technical and procedural requirements in order to be enforceable.

They must be made out to a person and served upon that person.

Under section 222(4) of the Criminal Procedure Act 1986 (the Act), a subpoena for production may be returnable (ie require the production of documents) on any day the case is listed before the court, or on any other day with the leave of the court.

This is subject to section 223(1) of the Act, which requires that a subpoena be served ‘within a reasonable time and at least 5 days before the last day on which it must be complied with’. A reasonable time has been defined by case-law as 21 days.

Subsection 223(2) gives the court discretion to order ‘short service’, in other words to shorten the compliance period.

Subsection 223(3) requires delivery in accordance with the ‘rules’.

Regulation 6.4 of the Local Court Rules 2009 authorises the following methods of service:

• Leaving it with the person,
• Sending it by post or fax to the person’s residential address,
• Sending it by electronic communication to the person’s email address,
• Leaving it with or sending or emailing it to the person’s lawyer, if the lawyer consents,
• Leaving it with the general manager of the correctional centre where the person is an inmate, or sending it by post, fax or other electronic transmission to the general manager, or
• Sending it by post or fax to the business address of a police or public officer, or to his or her email address.

Section 224 of the Act requires that a subpoena issued by someone other than a prosecutor must be accompanied by ‘conduct money’ to cover the costs of complying with the subpoena, which is an amount not less than that prescribed by Rule 6.5, unless otherwise ordered by the court.

It is a fundamental requirement that a subpoena must have a ‘legitimate forensic purpose’, which essentially means it seeks evidence relevant to the case from a person reasonably expected to have the material sought in their possession, custody or control, or to have knowledge about a fact at issue in the proceedings.

This can be distinguished from a ‘fishing expedition’, where the subpoena is issued on little more than a hunch, hoping it will lead to the production or elicitation of relevant evidence.

Setting aside a subpoena

Section 227 of the Act empowers a court to set aside all or part of a subpoena.

The grounds upon which a subpoena may be set aside include where:

• There was a failure to comply with the rules,
• It is too broad or vague,
• There is no legitimate forensic purpose,
• A form of privilege, confidentiality or public interest immunity is relied upon,
• It represents an abuse of process or is unduly oppressive,
• The person is not competent or compellable within the meaning of the Evidence Act, or
• There is a court order preventing or excusing compliance.

The process for applying to have a subpoena set aside is contained in Rule 6.7, which requires an application in the approved form to be completed, filed in court and served upon the party that issued the subpoena within 3 days of the return date that is specified on the subpoena.

The form is called a ‘notice of motion’ and should be accompanied by an affidavit setting out the grounds upon which it is claimed the subpoena should be set aside.

Failure to comply

Section 229 of the Act provides that the party who requested the subpoena may apply to the court for a warrant for the arrest of a person who fails to comply with a subpoena.

The court may issue an arrest warrant if satisfied that:

• There has been a failure to comply, and
• The requirements for issuing the subpoena were complied with and no just or reasonable excuse has been offered for the failure.

Under section 231, a person who attends court in answer to a subpoena to give evidence and refuses to testify can be imprisoned for up to 7 days.

The court also has the power to bring common law charges for contempt of court, which is any act that has the tendency to interfere with or undermine the authority, performance or dignity of the courts or those who participate in their proceedings: Witham v Holloway (1995) 183 CLR 525 per McHugh J at 538-539.

Contempt of court has been found to encompass a refusal to take an oath (or an affirmation as the case may be) or to testify: Smith v The Queen (1991) 25 NSWLR.