A subpoena is a formal court order that compels a person or organisation to do one of two things: attend court and give oral evidence, or produce documents and records to the court. In criminal proceedings in Australia, subpoenas are a powerful tool used by both the prosecution and the defence to secure evidence that might otherwise stay out of reach. Ignoring one is not an option. Failing to comply with a subpoena is treated as contempt of court, which carries its own serious consequences.
The two types of subpoena
Australian courts recognise two distinct forms. A subpoena to attend (sometimes called a subpoena ad testificandum) requires the named person to appear at a stated time and place and give evidence. A subpoena to produce (also called a subpoena duces tecum) requires the recipient to bring specific documents, records, or other items to court.
A single subpoena can combine both obligations. A bank, for example, might be required to produce account records and have a representative available to answer questions about them. Which form is appropriate depends on what the issuing party actually needs to prove.
Who can issue a subpoena?
Both the prosecution and the defence can apply for a subpoena. The subpoena itself is issued by the court registry, but it's the party who requests it that bears responsibility for serving it correctly and on time. Ann Valos Criminal Law issues subpoenas on behalf of clients where documents or witness testimony are central to building an effective defence.
Third parties, not just opposing parties, are frequently the recipients. Medical providers, employers, phone carriers, financial institutions, and government agencies all receive subpoenas regularly in criminal matters. The breadth of what can be captured is wide, which is why the courts have built in safeguards.
Setting aside or objecting to a subpoena
A recipient isn't powerless. Courts allow subpoenas to be set aside or varied in several circumstances. The most common grounds include an argument that the subpoena is oppressive (it demands too much with too little justification), that it seeks documents protected by privilege (such as legal professional privilege or the privilege against self-incrimination), or that it has no legitimate forensic purpose, meaning it's been issued as a fishing expedition rather than to secure genuinely relevant material.
Privilege is particularly significant. A person who receives a subpoena for documents that are subject to legal professional privilege under the Evidence Act 1995 (NSW) can apply to the court to have those materials excluded. The court then rules on whether the privilege claim is valid before any production is ordered.
Timing matters. An objection to a subpoena needs to be raised promptly, usually before the date specified for production or attendance. Letting the deadline pass without acting limits the options available.
What happens at the return date?
When a subpoena to produce comes before the court, the documents are typically inspected first by a judge or magistrate rather than being handed straight to the issuing party. The court decides whether the material is relevant, whether any privilege applies, and what portions, if any, should be released. This process protects witnesses and third parties from having sensitive private information disclosed without proper scrutiny.
For a subpoena to attend, the witness is simply required to be present and ready to give evidence when called. Courts take witness availability seriously. If a witness who has been properly served fails to appear, the court can issue a warrant for their arrest.
Conduct money and witness expenses
A subpoena to attend must be accompanied by conduct money: a payment sufficient to cover the witness's reasonable expenses in getting to court. This is a requirement, not a courtesy. A subpoena served without conduct money can be challenged and may be set aside on that ground alone. The amount is set by the court's scale of costs and is separate from any fee a professional witness might charge for their time.
Subpoenas and the right to silence
Receiving a subpoena to attend does not override every protection available to a witness. A person can still assert a privilege against self-incrimination if answering a specific question would expose them to criminal liability. The court then decides whether the privilege applies to that particular question. This intersection between compelled testimony and the right to silence in Australia is one of the more nuanced areas in evidence law, and it's worth understanding before a witness takes the stand.
Third-party witnesses are also distinct from accused persons. An accused person cannot be compelled by subpoena to give evidence for the prosecution. That protection sits at the core of the criminal justice system, and no subpoena can override it.
Subpoenas in committal proceedings
Subpoenas are frequently used at the committal stage, before a matter reaches the District or Supreme Court for trial. At a committal, the defence has a limited opportunity to test the prosecution's evidence and decide whether to apply to cross-examine key witnesses. Securing records by subpoena before that stage can reveal inconsistencies or gaps that shape the entire defence strategy. If you want to understand how the committal process fits into the broader picture, the article on what is a committal hearing and how does it work sets out the full framework.
Practical steps if you receive a subpoena
Read it carefully. Note the return date and the exact documents or attendance required. Assess immediately whether any privilege applies to the material sought. If the subpoena seems unduly broad or the purpose is unclear, get legal advice before the return date. Don't produce documents voluntarily before the court has inspected them unless you are certain no privilege issue exists.
Ann Valos Criminal Law advises clients who receive subpoenas in the course of criminal matters, including individuals subpoenaed as third parties in someone else's proceedings. Responding correctly at the outset is far simpler than trying to claw back information that's already been placed before a court.