A subpoena is a written command issued either on behalf of the defence or the prosecution.
There are three types of Subpoena:
- A subpoena to give evidence;
- A subpoena for you to produce documents or other evidence to the Court; or
- A subpoena to do both 1 & 2.
Who can issue a subpoena?
If you are the defendant in criminal proceedings, your solicitor will attend Court to file a subpoena with the registrar on your behalf.
In criminal cases, other people that can issue a subpoena include but are not limited to; NSW Police Officers, a solicitor for the Office of the Director of Pubic Prosecutions or a member of another statutory body representing the Crown.
If you have been issued with a subpoena from a party that is not the prosecutor of the criminal case, they are required to pay you conduct money.
Conduct money is a prescribed sum of money to compensate you for the time you have provided to the Court. Conduct money may be to compensate you for reasonable travel expenses or photocopying costs.
Compliance and objection
A subpoena must be served at least 5 days prior to the date required for compliance, unless the Court has made a short service order. Unless you have a reasonable excuse or objection, you must comply with a subpoena.
If you believe that a subpoena may not be valid, you may object to having to comply with the subpoena.
There are several arguments for objecting to a subpoena:
- Insufficient conduct money;
- The subpoena was served out of time;
- The subpoena was issued without a ‘legitimate forensic purpose’ (“fishing exercise”);
- The subpoena hasn’t complied with specific Court rules.
If you don’t comply with a subpoena, and you don’t have a reasonable excuse or objection, the party who issued the subpoena may request a warrant for your arrest from the Court.
If the Court does issue a warrant for your arrest, the NSW Police will seek to arrest you. In the event that you are arrested, you may be refused bail and held in a correctional center until you are to be brought before the Court at a time and date specified by the Judge or Magistrate.
In the event that you do comply with the subpoena by turning up to Court, but you then fail to give evidence on oath, a warrant may be issued by the Court to commit you to a correctional center for not more than 7 days.
Unsure whether you need to comply with a subpoena?
It is best to seek specialist legal advice that is tailored to your individual situation. Our team is highly experienced in dealing with subpoenas, and successfully objecting to compliance where appropriate on behalf of our clients. Contact us if you require assistance.