9 / 11 / 2022

Subpoenas

Subpoenas can play a crucial role in preparing your matter for sentence, hearing or trial.

What is a subpoena?

A subpoena is a court order that compels a person/s to produce tangible evidence (e.g. documents, sound recordings or video footage) and/or to give evidence in court proceedings. Subpoenas are issued in any one of the following forms:

  • Subpoena for Production (to produce tangible evidence)
  • Subpoena to Give Evidence (to give evidence at a hearing or trial)
  • Subpoena for Production and to Give Evidence (to both produce tangible evidence and give evidence at a hearing or trial)

Why issue a subpoena?

Your criminal defence lawyer can use a Subpoena for Production to obtain information which may support your defence and/or discredit the evidence of a prosecution witness. Examples of information which may be sought are:

  • Video / CCTV footage
  • Sound recordings
  • Photographs
  • Medical records and/or
  • Bank or financial statements.

The decision to issue a subpoena is a very important one, because the other side will also be granted access to the material. Your lawyer will consider this from a tactical perspective and advise you if a subpoena should be issued.

If you intend to plead not guilty, your lawyer should serve a Subpoena to Give Evidence on each defence witness you intend to call to give evidence at the hearing or trial. That person is then under a legal obligation to attend court.

The Process: Subpoena for Production

Drafting the subpoena: Subpoena forms are freely accessible on the website of the court in which a matter is listed. When filling out the form, your lawyer must include the details of the person/s on whom the subpoena is to be served and a detailed description of the tangible evidence which is sought.

Filing the subpoena with the court: Your lawyer then needs to file three copies of the subpoena at the court’s registry. The registry will then list your matter for a ‘return of subpoena’ mention. This is the date by which the recipient of the subpoena is required to comply with the subpoena by producing the material to the court’s registry. If no objection is taken, your lawyer will be allowed to make a copy the material.

Serving the subpoena: The subpoena must then be served on the appropriate person/organisation.  For example, if your lawyer filed a subpoena seeking video footage of an assault that took place on the platform of a train station, he/she will serve the subpoena on Sydney Trains.

Note that your lawyer must:

  • serve the subpoena at least five (5) business days before the ‘return of subpoena’ mention is listed (unless the court makes an order allowing a subpoena to be served on short notice)
  • include a cheque for ‘conduct money’ to cover the reasonable expenses which will be incurred by the recipient of the subpoena in complying with the subpoena.

Attending the ‘return of subpoena’ mention: Your lawyer must attend court on this date. Assuming that the subpoena has been complied with, and there is no objection, the court will make an order permitting your lawyer to make a copy of the material. If the recipient of the subpoena objects to producing the material sought under the subpoena, they are required to file an application to set aside the subpoena and provide reasons. 

The Process: Subpoena to Give Evidence 

Drafting the subpoena: Subpoena forms are freely accessible on the website of the court in which a matter is listed. When filling out the form, your lawyer must include the details of the person/s on whom the subpoena is to be served and the date on which they are required to attend court.

Filing the subpoena with the court: Your lawyer then needs to file three copies of the subpoena at the court’s registry.

Serving the subpoena: The subpoena must then be served onto the person who is required to attend court to give evidence. Often a process server is used to do this.

Note that your lawyer must:

  • serve the subpoena at least five (5) business days before the date on which the recipient of the subpoena is required to attend court (unless the court makes an order allowing a subpoena to be served on short notice)
  • include a cheque for ‘conduct money’ to cover the reasonable expenses which will be incurred by the recipient of the subpoena in complying with the subpoena.

Subpoenas: Frequently asked questions

Q: Is material produced under subpoena confidential?

A: No. If you issue a subpoena, the prosecution will also be allowed access to the material produced. For this reason, if you think there may be some unhelpful information produced, you should think carefully about whether you could obtain the information by other means, or whether you should issue a subpoena at all.

Q: How much conduct money is required?

A: This depends on a number of things including who the subpoena is issued to and how much information is sought. The minimum conduct money required is $33.00, however some organisations (such as telephone companies and medical centres) can charge hundreds of dollars.

Q: What if the recipient of the subpoena does not comply with the subpoena? 

A: If the recipient of the subpoena fails to comply with the subpoena, a warrant may be issued for their arrest and/or a penalty will be incurred.

Q: I have been served with a subpoena. What should I do?

A: Read the subpoena carefully and work out whether you are required to produce documents or give evidence (or both).  If you do not think you can comply with the subpoena, or if you have any questions, you should seek legal advice.

Karen Espiner, Partner

Karen Espiner

Karen Espiner

Karen Espiner is a NSW Accredited Specialist in Criminal Law and founding partner at Hugo Law Group. She was named Criminal Law Partner of the Year in the 2020 Lawyers Weekly Awards.
Much of Karen’s practice is devoted to representing clients who have been charged with serious criminal offences including murder, sexual assault, drug supply/manufacture, serious assaults and money laundering. Known for her meticulous preparation and persuasive advocacy, she is well respected by other lawyers, barristers and Judges.