Case study

You’ve been subpoenaed to give evidence in court. You probably have lots of questions about what it means and what you have to do.

If you’ve been subpoenaed, it’s probably a subpoena to give evidence. The purpose of a subpoena is to create an enforceable obligation on you ("the subpoenaed person" or “the addressee”) to attend court and give evidence on a particular date and time.

If all the legal requirements of a subpoena have been met, you must attend court and give evidence as requested.

However, before a subpoena can create this obligation, it must be:

1. Correctly prepared and drafted,
2. Validly issued and
3. Meet minimum service requirements.

Preparation and drafting

Subpoenas must be prepared in accordance with Part 35 of the Uniform Civil Procedure Rules 2005 (NSW). It is uncommon for issues to arise from the preparation and drafting of a subpoena to attend and give evidence.

Obviously, the subpoena must correctly identify the addressee and the particulars of the obligation.

Validly issued

Subpoenas can be issued by a court registrar, and in certain circumstances, by public officers and police officers. In the case of charges in the local court, police officers can issue subpoenas. (Section 223 Criminal Procedure Act 1986).

Minimum service requirements

“Service” in this case means to bring to the addressee’s attention. After all, no one can comply with an obligation if they don’t know it exists. Service may involve the subpoena being given to the addressee in person or by other means. Email is often used, but will usually be followed up with a phone call or email to confirm it has been received and understood.

A subpoena to give evidence must be served within a reasonable time and at least 5 days before the last day on which it must be complied with. If it is not, you do not have to comply with it. There is also a requirement for conduct money to be paid or offered.

The party issuing the subpoena can request the registrar to permit service in less than the minimum 5 days. Any change must be endorsed by the registrar.

What does the subpoena mean?

If the subpoena has been correctly prepared, validly issued, and meets the minimum service requirements, the subpoenaed person/addressee must attend the court on the date and time specified in the subpoena. They must also give evidence if called to do so.

If a person has been subpoenaed and doesn’t attend court, the court can potentially issue a warrant for their arrest. The person may also be in contempt of court, which is a criminal offence.

In practice, it is uncommon for warrants to be issued in the local court when witnesses do not attend. The policy reason for this appears to be that if someone is already a victim of crime (example - domestic violence), the prosecutor and court would reasonably want to avoid causing further potential harm to that witness by having them arrested and brought before the court. There is a logical risk that warrants issued for witnesses may discourage those witnesses from reporting crime or cooperating with police in the future.

Get legal advice (from a solicitor) to understand your rights and obligations.