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Subpoenas – What are they and why are they important?

Although different government agencies can issue subpoenas or summonses, this post deals with the issue of subpoenas by criminal courts in South Australia.

A subpoena is a writ (order) by the Court which compels the person who is served with it, under threat of punishment, to do one or both of two things:

  1. Attend the court and give evidence
  2. Produce material to the court.

A subpoena can be issued by the Court on the request of any party to the proceedings.  Different Courts have different rules as to when and how subpoenas can be issued, but the process is usually the same:  A party takes a copy of the subpoena to the court and applies to the Court to issue the subpoena; Assuming the Court issues the subpoena, the party who applied for it then has to serve it on the person (including a company or department) to whom it is addressed; the subpoena must then be complied with by the person on whom it is served by the date specified in the subpoena.  If they are unable to do so, then they need to seek a further order of the court either setting aside the subpoena or granting an extension of time for compliance.

Subpoenas are important for two key reasons:

  1. They allow the parties, both the prosecution and the defendant(s), to compel witnesses to come along and give evidence at a trial or other hearing;
  2. They allow the parties, but in particular the defendant(s), to obtain access to material which they otherwise could not.

The first of these is self-explanatory.  Although many, if not most witnesses called during a trial are willing, albeit sometimes reluctant, to assist the administration of justice by attending trial voluntarily; not all are.  Some witnesses need to be brought to the Court, and the subpoena is the means by which any party can cause that to happen.

Without a subpoena a trial would be at the mercy of whether witnesses wanted to come to court, and this would result in trials not being able to proceed.

The second reason is more important for the defendant that for prosecution.  The reason being that the prosecution has the ability to utilise police resources.  Police have other coercive powers, such as search warrants, which allow them to seize certain material.  The defendant has no such power, so the Defendant often needs to rely on the power of the court to obtain these documents.

This is particularly important for a defendant because it enables them to do things such as: challenge the legality of police action; obtain material that undermines the Prosecution case or the credit of a prosecution witness; or obtain material which confirms the defendant’s version of events.

In South Australia a wilful failure to comply with a subpoena is a contempt of court.  If you fail to comply with a subpoena either to produce material to the Court or to attend to give evidence, the Court can have a warrant issued for your arrest. Once arrested the court can detain you indefinitely until you comply with the subpoena.

If you have been served with a subpoena and are worried about your obligations please contact our office for advice.

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