Served With A Subpoena

What is a Subpoena?

A subpoena is a legal document issued by a Court at the request of a party to a case. A subpoena compels a person to produce documents or give evidence at a hearing or trial.

There are three types of subpoena:

• a subpoena for production;
• a subpoena to give evidence; and
• a subpoena for production and to give evidence.

When served with a subpoena, you must comply with it.

If you do not comply with a subpoena, a court may issue a warrant for your arrest, and order you to pay any costs caused by your non-compliance. A court may also find you guilty of contempt of court.

How to Prepare?

If you have been asked to attend court as a witness and you have a concern about the evidence you will be asked to give, you should consider getting legal advice.

You cannot refuse to be a witness. A person served with a subpoena to attend to give evidence must comply with the subpoena. A court can issue a warrant for the arrest of a witness who does not attend.

Arriving at Court

When you arrive at court, find the courtroom where the case will be heard.

You will need to find the person who subpoenaed you (for example the police officer in charge), who will tell you where to wait until called.

In some court complexes, like the Downing Centre in Sydney, there are special places where witnesses can sit while waiting to be called into court.

Witnesses are not permitted in the courtroom until it is their turn to give evidence. This is done so that witnesses do not hear the evidence of other witnesses, because this can “taint” evidence.

Make sure that you do not discuss the case with anyone while you are waiting to be called.

Oath or Affirmation?

Each witness who is called into court is asked to take an oath or affirmation. This is a promise to tell the truth.

Taking an oath requires you to hold a religious book, such as the Bible or Koran, while promising or swearing to tell the truth.

Which option you choose is a matter for your own discretion.

Giving Evidence

Witnesses sit in a witness box, which is usually at the front of the courtroom near the judge or magistrate.

When giving evidence, you will need to answer questions from each of the parties and sometimes from the judge or other judicial officer.

There will be microphones in the courtroom. The microphones are there to clearly record each person speaking in the courtroom. When giving evidence, you do not need to get too close to the microphone. Just speak clearly and loud enough for all to hear.

Expert Witnesses

These witnesses are experts in a particular field, such as psychiatrists or structural engineers, who may be asked by the court to provide expert opinions.

Expenses

Payment for producing documents or attending as a witness should be discussed with the person asking you to attend or who issued the subpoena.

There are different rules regarding witness expenses depending on the type of case before the court.

In most civil cases you are entitled to your reasonable expenses of complying with the subpoena.

Public servants are generally not entitled to witness expenses, as they are paid as if at work that day. A public servant who is giving evidence needs to obtain a certificate of attendance from the court registry to give to their employer to ensure wages are paid.

If you have been called as a Crown witness or witness for the defense in a criminal trial in the Supreme Court or District Court, you can claim an allowance for fees, loss of income or salary, meals, and transport.