What is a Subpoena? A Step-By-Step Guide - Criminal Defence Lawyers Australia

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Being served with a Subpoena or issuing a Subpoena can be a daunting process if you’re unfamiliar with the laws on Subpoenas in New South Wales. In New South Wales Local Court Proceedings, section 222 of the Criminal Procedure Act gives a Local Court Registrar the power, if requested to do so by a party to proceedings, to issue to the person named, a subpoena to give evidence in court, or a subpoena for production to produce documents or materials to the court on the return date, or both in accordance with the rules. The Rules are the Local Court Rules 2009 (NSW) for local court criminal proceedings. There are severe consequences for failing to comply with a valid subpoena. However, a subpoena can be set aside upon a successful objection that the law provides.

Below is an outlined of the laws concerning Subpoenas to produce and to give evidence in criminal proceedings drafted and reviewed by our criminal lawyers Sydney team. It is not to substitute personalised legal advice.

Table Of Contents

Meaning of Subpoena | What it Means to be Subpoenaed
Step By Step Guide on Drafting, Filing and Issuing a Subpoena in New South Wales
Does a Subpoena Have to Be Hand Delivered? | How is a Subpoena Issued?
Responding to a Subpoena | Return of Subpoena
Do You Get Paid for Being Subpoenaed as a Witness?
Does a Subpoena Mean You are in Trouble? | Can You Refuse a Subpoena as a Witness?
When Must a Subpoena Be Served By?
How to Object to a Subpoena
How Can I Subpoena Phone Records?
What You Must Do If You Receive a Subpoena
Are Subpoenas Confidential?

Meaning of Subpoena | What it Means to be Subpoenaed

A subpoena is a written Court order requiring a person or entity to attend Court to give evidence; or produce a document or a thing to the Court; or attend Court to give evidence and produce a document or a thing to the Court.

A subpoena can only be issued by the Court or a Tribunal. It is requested by one of the parties to a proceeding, and is an order made on a third party, that is, a party other than the opposing side in the proceedings.

A party requesting the subpoena is known as the “issuing party.” The party who is required to comply with the subpoena is the “addressee” or “recipient.”

If the issuing party is not represented by a lawyer, or if the proceedings are in the Federal Court of Australia, in the small claims division of the Local Court, or in the NSW Civil and Administrative Tribunal, the issuing party needs to “seek leave” or ask the Court or Tribunal for permission to the Court or Tribunal for the subpoena to be issued, setting out their reasons.

The issuing party bears the onus of establishing that the subpoena has a legitimate forensic purpose and also establish that it’s “on the cards” that the documents will materially assist in relation to the issues in dispute in the proceedings.

Step By Step Guide on Drafting, Filing and Issuing a Subpoena in New South Wales

To draft a subpoena, you will first need to complete the correct form, depending on the type of subpoena you are applying for and the Court or Tribunal where your matter is being heard.

Subpoena forms can be found on the websites of Courts and Tribunals. For ease of access, the Court websites are linked below. Simply type in the word “forms” into the search field, and find the link to the form:

You will then need to complete the form. This includes ensuring it is addressed to the correct person, or in the case of a company or organisation, to ‘The Proper Office.’ If you are subpoenaing a company or organisation, for example, NSW Police or a hospital for medical documents, you can find the organisation’s address for subpoenas online.

If you are drafting a subpoena to produce documents, you will need to thoughtfully set out which documents you are subpoenaing in the schedule. It is important to strike a balance between being precise, but comprehensive. This is to avoid your subpoena being objected on the basis that it is too broad, while also avoiding the risk that relevant documents will not fall within the scope of your subpoena and will be missed.

Do not fill out the sections of the subpoena form that set out the due date for compliance with the subpoena, the date that a witness will be required to give evidence, the last date of service or the return date. The registry staff at the Court or Tribunal will fill this out when you file the subpoena.

Once you are satisfied with the wording of your subpoena, you will need to file the subpoena with the Court or Tribunal. You will need three copies when you attend the Court or Tribunal registry.

Does a Subpoena Have to Be Hand Delivered? | How is a Subpoena Issued?

After the Registry has provided sealed copies of a subpoena, next it must be personally served upon the recipient. This can be done by physically handing the subpoena to the recipient. In some cases, a recipient may accept service through email or post. The subpoena must be given to the person before the last date of service specified by the Registry for it to be valid.

Some issuing parties prefer to pay process servers to effect service, but there is no requirement to do so. A process server can be handy if the recipient is evading service, or if the recipient’s whereabouts is unknown to effect personal service, as process servers have tools to be able to locate people and find their details. A process server is the preferred approach if there is a safety fear during personal service, or if simply to avoid potential confrontation.

An Affidavit of Service is required to be completed by the person who effected service on the recipient, whether that be a process server, or the applicant. This forms the evidence that the subpoena was effectively served upon the recipient to avoid the other party objecting to the enforceability of the subpoena.

Responding to a Subpoena | Return of Subpoena

If you are the recipient of a subpoena to attend to give evidence, you will need to attend the Court or Tribunal when the subpoena is listed for return to give such evidence, being the return date. If you are the recipient of a subpoena to produce documents or things, you are required to ensure that the documents or things requested in the schedule to the subpoena are served to the court registry on the return date outlined in the subpoena.

In the case of a subpoena to produce, the issuing party to the subpoena will need to seek “leave”, the legal term for permission, to access any documents that have been produced. That party will also need to ask for leave to uplift the documents and to make copies of the documents produced.

Do You Get Paid for Being Subpoenaed as a Witness?

The recipient of a subpoena must be given or offered conduct money to facilitate compliance with the subpoena. Some organisations such as the NSW Police force specify on their website the conduct money amount that they require for compliance with subpoenas. The amount of conduct money varies depending on who the recipient is and the type of subpoena being issued, and the amount increase every year marginally. To find the applicable amount of conduct money, refer to the Court or Tribunal Website.

The recipient of a subpoena is not required to comply with the subpoena if the required conduct money is not given or offered. A Court or Tribunal can order for conduct money to be paid if it is not offered or given.

Does a Subpoena Mean You are in Trouble? | Can You Refuse a Subpoena as a Witness?

If the documents required by the Subpoena have not been produced by the return date, or the person required to attend court to give evidence by the Subpoena fails to attend on the date required by the subpoena, the recipient will need to explain the reason for the non-compliance to the Court or Tribunal.

If you have been served with a subpoena and you do comply, it is important to keep evidence of your compliance with the subpoena, in case the issuing party raises issues with the Court about your alleged lack of compliance.

If the recipient deliberately fails to comply with the subpoena without a legitimate reason, the Court has the power to issue a warrant for their arrest. This is because a failure to comply with court orders, including subpoena’s is considered contempt of court.

A party who requested or issued a subpoena may apply to the court for the issue of an arrest warrant under Part 4 of the Criminal Procedure Act for the arrest of the person named if the person named has not complied with the subpoena pursuant to section 229(1) of the Criminal Procedure Act.

The court may then issue a warrant if section 229(2) of the Criminal Procedure Act is satisfied, namely, the person named has not complied with the Subpoena and the requirements of Part 3 of the Criminal Procedure Act for subpoenas were complied with and no just or reasonable excuse has been offered for the failure to comply.

A person who is arrested under a warrant must be brought before a Judge or Magistrate as soon as practicable pursuant to section 239 of the Criminal Procedure Act.

If a warrant has been issued by the court and the court has subsequently issued an arrest warrant for non-compliance of the subpoena, then following execution of the arrest warrant, once he or she is brought before the Local Court Magistrate at court or an authorised officer, if bail is not granted or dispensed with, a warrant may be issued committing the person to a correctional centre or other place of security, and ordering that person to be brought before a court at the date, time and place specified in the order pursuant to section 229(3) of the Criminal Procedure Act.

A named police officer, or person authorised by law to execute a warrant to arrest, or a senior police officer of the area where the court is located, or the senior police officer and all other policers, or generally all police officers may execute an arrest warrant pursuant to section 238 of the Criminal Procedure Act. A warrant to arrest a person may be carried out by arresting the accused or witness at any place in New South Wales.

If you have been issued with a subpoena to attend court to give evidence as a witnesses or to produce any document or thing or both and you refuse, without offering any just cause or reasonable excuse to be examined on oath, or to take an oath, or to answer, after having taken an oath, any questions that are put to you concerning the subject-matter of the proceedings, or to produce the document or thing, the court may order that a warrant be issued for you to be committed to a correctional centre for a period not exceeding 7 days, pursuant to section 231(2) Criminal Procedure Act.

This applies if you have been issued with a subpoena to attend the local court to give evidence as a witnesses or to produce any document or thing or both, and:

You appear before the court on a subpoena; or
You appear before a court on bail after being arrested under a warrant after failing to comply with a subpoena; or
You are brought before a court under a warrant of commitment after being so arrested

You are to be released before the expiration of the 7 days if you consent to being examined on oath and to answer questions concerning the subject-matter of the proceedings, or you produce the document or thing, pursuant to section 231(3) Criminal Procedure Act.

How Long Does an Arrest Warrant Last For?

The period of time or duration of an arrest warrant issued by the court lasts for depends on the offence. An arrest warrant for summary offences where the accused person is an adult lasts for up to 10 years. An arrest warrant for indictable offences carrying a punishment of imprisonment for less than 5 years where the accused person is an adult lasts for up to 15 years. If the offence is punishment by imprisonment for less than 25 years and not less than 5 years, the arrest warrant lasts for up to 30 years. The arrest warrant lasts for up to 50 years if the offence is an indictable offence punishable by imprisonment for life or 25 years or more.

Can an Arrest Warrant be Revoked?

Any warrant to arrest a person can be revoked by a Judge or Magistrate or authorised officer if the party who requested the warrant applied to the Judge, Magistrate or authorised officer to revoke the warrant; or the Judge, Magistrate or authorised officer is of the opinion that it is appropriate to do so pursuant to section 240 of the Criminal Procedure Act.

When Must a Subpoena Be Served By?

A subpoena must be served within a reasonable time and at least 5 days before the last day on which it must be complied with pursuant to section 223(1) of the Criminal Procedure Act. The day on which it must be complied with will be outlined in the subpoena document itself.

A subpoena can be served on a later date than the time permitted if a Registrar of the court, on application by a party to the proceedings, permits it and the later time is endorsed on the subpoena by the Registrar pursuant to section 223(2) of the Criminal Procedure Act.

Failure to serve the subpoena on time will render the subpoena invalid and therefore un-enforceable at law. This will mean that the court will have no power to issue an arrest warrant for the failure to comply with an invalid subpoena.

How to Object to a Subpoena

A successful objection to a valid subpoena will mean that the recipient of the subpoena will not have to comply wholly or partly. A valid subpoena can be set aside by a court upon an application by the person named in a subpoena to set it aside wholly or in part pursuant to section 227(1) of the Criminal Procedure Act. If you are seeking to set the subpoena aside, you must give notice of your application by serving it to the other party. This must be filed with the court pursuant to section 227(2) of the Criminal Procedure Act and rule 6.7 of the Local Court Rules 2009 (NSW).

Before access is granted or an order to produce is made by the court, the applicant must identify a legitimate forensic purpose for which access is sought and establish that it’s “on the cards” that the documents or material sought in the subpoena will materially assist.

A recipient can object to a subpoena on a number of grounds. If the subpoena is set aside, the issuing party may also be liable to pay the recipient’s costs.

Common grounds for objection to a subpoena include the following:

Legitimate Forensic Purpose: The subpoena must identify a legitimate forensic purpose for which access is sought. Mere relevance or the fact that it may be relevant is not sufficient, as has been held in the case of Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65. If there is no material to indicate that there has been or might have been non-compliance then there will be no legitimate forensic purpose; or wishing to view the documents to see if it may assist the case will not constitute a legitimate forensic purpose; or wanting to check if the Law Enforcement (Controlled Operations) Act has been complied with it not a legitimate forensic purpose; a subpoena issued for a collateral or private purpose will not constitute a legitimate forensic purpose. However, anything which might provide for proper and fruitful cross examination will constitute a legitimate forensic purpose.

On the Cards: The material or documents sought in the subpoena must be “on the cards” that it will materially assist the defence case, otherwise the other party can object. This means that the subpoena must not be a fishing expedition, but “on the cards” could be established if it appears to be “on the cards” that the documents sought will materially assist the defence case as has been held in the case of Alister v The Queen (1983) 154 CLR 404. The legal test requires the Court or Tribunal is to decide if the information sought will assist the issuing party’s case, or if it was “materially assist on an identified issue,” even if the information sought is not ultimately found to be admissible. The subpoena must specify the documents or things it seeks with ‘reasonable particularity and it must not be a “fishing expedition” in that it must not be used by the issuing party to seek to discover if the recipient has any relevant information that could help the issuing party.

Oppressive: The subpoena is oppressive having regard to all of the circumstances, including the scope of the subpoena, the number and the nature of the documents sought, and the expense and effort that would be incurred by the recipient if they were forced to comply.

Public Interest Immunity: Any party can object to a subpoena on public interest immunity grounds. Upon the court’s own initiative or on the application of any person (whether or not the person is a party to the proceedings), the court may direct that the information or document not be adduced as evidence if the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document pursuant to section 130(1) and (2) of the Evidence Act 1995 (NSW). “Matters of state” include consideration of section 130(4) Evidence Act matters including any prejudice the security, defence or international relations of Australia; damage relations between Commonwealth and State; prejudice the prevention, investigation or prosecution of an offence

The issuing party will be given an opportunity to argue why the subpoena should be enforced. The Court or Tribunal will then decide if the subpoena will be enforced in whole, in part or not at all.

How Can I Subpoena Phone Records?

You can issue a subpoena to a telecommunications service to obtain phone records of text messages and phone call log details if the phone records you are seeking has a legitimate forensic purpose for which access is sought and where it is “on the cards” that it will materially assist the legal proceedings on foot. It cannot simply be a fishing expedition.

What You Must Do If You Receive a Subpoena

Upon being served a subpoena, first check whether the subpoena has been served in time. It if it not served at least 5 days before the last day on which it must be complied with, the subpoena is invalid. Next check the date it is returnable on and whether it is a subpoena to produce materials or things or a subpoena to attend court to give evidence. Next, check the location the subpoena is returnable and in the case of a subpoena to produce, check the schedule which is supposed to detail the documents or things requested- this must be set out clearly and specifically. It is also important to check if the subpoena copy you have is a court sealed copy- usually in the form of a stamp at the front of the subpoena document.

If you believe you should not have to produce the documents or things requested in the subpoena to produce, or you believe you should not have to attend court to give evidence in the case of a subpoena to attend, then it is advisable to speak to a lawyer experienced with subpoenas to get legal advice- you may or may not have grounds to object. Otherwise, compliance with a validly issued subpoena is mandatory.

Are Subpoenas Confidential?

Evidence given in court is not confidential unless the court orders a non-publication in respect of it. Any documents or things produced under a subpoena remain confidential until and unless it is adduced into evidence in the court proceedings, unless the court orders a non-publication in respect of it.

Court proceedings are generally open for the public to view and listen to. in criminal proceedings the presumption of innocence is maintained unless and until the prosecution have proven guilty beyond reasonable doubt.

Subpoenas are a powerful tool that can compel evidence from third parties, but they must be drafted carefully to be effective. Whether issuing or responding to a subpoena, understanding the rules around drafting, service, compliance, and objection is essential to avoid delay, cost and adverse consequences. Contacting an experienced lawyer for representation will ensure that the material or evidence being sought in the subpoena will assist the Court or Tribunals in having access to relevant evidence to determine the dispute fairly.

By Hana Seraphim and Jimmy Singh.

Published on 01/02/2026