A quick guide to subpoenas
A subpoena is a legal document that compels a person or entity to attend court, produce documents, or both. In criminal cases, subpoenas are often used by the parties to obtain particular documents or to compel witnesses to give evidence.
Our guide outlines everything you need to know about subpoenas, especially when they’re being used in criminal proceedings.
What is a Subpoena?
A subpoena is a formal order issued by the court or an authorised person (police officers for instance) that requires an individual or organisation (the addressee) to either attend court to give evidence, produce certain documents or objects for examination, or do both. Subpoenas are used to gather important information in criminal proceedings, either by the prosecution or by the defendant.
In criminal cases, subpoenas are requested by the prosecution or defence to gather evidence relevant to the case. If you have been subpoenaed, then you are required to either appear in court or provide relevant documents.
There are three main types of subpoenas:
A subpoena to produce documents: Requires the production of documents or items relevant to the case.
A subpoena to attend court: Requires a person to give evidence at a hearing or trial.
A subpoena to produce documents and attend court: Requires both the production of documents and attendance in court to give evidence.
Issuing a Subpoena
A party wishing to issue a subpoena must apply to the court registry. The exception is for the prosecution, for instance, the police, who are able to issue subpoenas themselves.
In NSW, subpoenas must comply with specific rules under the Criminal Procedure Act 1986 (NSW) and the District Court Rules 1973. These rules outline how subpoenas should be served, how documents are to be produced, and the penalties for non-compliance.
Serving a Subpoena
The method of serving a subpoena depends on the type of person or organisation being subpoenaed. The subpoena can be served by handing it directly to the individual, sending it to their business or residential address, or by electronic communication such as email or fax. If the subpoena is being served on an inmate or public officer, specific procedures apply to ensure proper service.
If the recipient refuses to accept the subpoena, it can still be legally served by placing it in their presence and informing them of its nature. Once served, the recipient is legally obligated to comply with the subpoena.
Failing to Comply with a Subpoena
Failure to comply with a subpoena can result in severe legal consequences, including an arrest warrant being issued. Additionally, the court may order the party who failed to comply to pay any costs incurred due to their non-compliance.
What Happens to the Documents or Evidence Produced?
When documents or physical evidence are produced under a subpoena, they are typically inspected by the requesting party and may be used in court proceedings. The court may allow parties to inspect or copy these documents, and access is restricted until that permission is given. If you are involved in a criminal case and produce evidence or documents, it is important to retain a copy for your own records.
Some documents or evidence may be marked as “exhibits” and used during the trial. If they are marked as exhibits, they will not be returned until the case is concluded. Documents not marked as exhibits are usually returned once the case ends, but the issuing party will be notified before any material is returned. Usually, if documents have been produced to the court under a subpoena, they are photocopies, not the original documents.
What if I Want to Object?
In certain circumstances, a party may object to producing the requested documents This can happen in criminal proceedings, where a subpoena might request information that is unrelated to the case or the requested information is too broad.
If you have been served with a subpoena and believe that it requests irrelevant or excessive information, or if the documents are protected by legal privilege, you may object to the subpoena. It is prudent to obtain legal advice beforehand to make sure that you comply properly with the subpoena while maintaining your objection. At Kingston Fox, we can guide you to the best course of action and help consider if challenging or complying with a subpoena is the appropriate response.
What’s Next?
Subpoenas are powerful tools in legal proceedings, but they also come with significant responsibilities.
Whether you are issuing a subpoena or have been subpoenaed, understanding the process and the legal consequences is essential.
At Kingston Fox, we specialise in criminal defence and can assist you if you find yourself involved in a subpoena-related issue. Our experienced team can provide guidance on how to navigate subpoenas, make objections, and ensure that your rights are protected throughout the process.
If you’ve been served with a subpoena or need to issue one, you can contact us on 0457 781 133, or via our contact form and one of our lawyers will be able to assist you.
Please note that this article does not constitute legal advice.
