What is a Subpoena in NSW?
A subpoena is a legal document that requires someone to provide evidence or attend court. In NSW, a subpoena must be personally served on the person it is addressed to, and it can be withdrawn in certain circumstances. Receiving a subpoena does not automatically mean that you are in trouble, but it’s important to take it seriously and seek legal advice. It is common in criminal proceedings that the criminal defence lawyers issue subpoenas for production and for witnesses to attend court on behalf of their client who is charged with criminal offences.
A court order requiring an individual to present evidence or documents in a legal proceeding is known as a subpoena. There are three types of subpoenas:
- subpoena for production
- subpoena to give evidence
- subpoena for production and to give evidence.
Subpoena for Production
This is where you are required to produce documents to the court. Usually copying of the documents requested and providing to the court is sufficient. For example producing medical records of a person, which is to be produced to the Court.
Subpoena to Give Evidence
This is when you are required to attend Court to give evidence. You will receive the specific date and location where you are required to attend. As a subpoena is issued by the court, you are required to respond to a subpoena.
Subpoena for Production and to Give Evidence
This is where you are required to both produce documents to court and attend court on a specific date to give evidence in person.
Subpoena Meaning NSW
In simple terms, a subpoena is a legal document that requires someone to provide evidence or attend court.
A subpoena can only be issued by a party to the case. If the party to the proceedings is not represented by a lawyer, or if the case is in the Federal Court or the Small Claims Division of the Local Court, permission from the court is needed. Depending on the state and court, there may be specific rules about issuing subpoenas, which should be taken into account by anyone involved in court proceedings.
Failing to obey a subpoena without a legal justification can be considered a violation of the court, and can even lead to an individual being taken into custody. Additionally, the person who does not follow the subpoena may be held responsible for financial losses suffered by the party that issued it. Courts are able to make the issuing party responsible for any costs or damages sustained by the person receiving the subpoena when they follow the subpoena’s commands. These costs can include any legal fees accrued when determining if the subpoena is valid or if the documents are protected by confidentiality laws. It is usually determined what the recipient’s costs are after they have complied with the subpoena.
There are many legal reasons why someone who receives a subpoena may not comply with its demands. For instance, someone may not have to comply if the subpoena was not served by the specified date or if they are required to attend court but have not been given conduct money to cover their expenses in a timely manner. Another reason could be that the subpoena is too wide and is a fishing expedition by the issuing party.
Does a Subpoena have to be served in person?
Under NSW law, a subpoena must be personally served on the person it is addressed to. This means that someone must physically deliver the subpoena to the person named in the document. It cannot be sent by email or posted to an address. In some cases, the court may allow alternative methods of service, such as via fax or email, but only if leave if given by the court. This is known as substituted service.
If the person being served a subpoena refuses to accept it, it can still be legally served by informing the party of the subpoena and placing it in their presence. This will then legally require the party to comply with the subpoena.
In addition, if the subpoena is served by a professional process server, they will be responsible for preparing an Affidavit of Service. However, regardless of whether you are personally served with the subpoena the individual who served the subpoena must complete and sign an Affidavit of Service.
Can a Subpoena be Withdrawn?
In certain circumstances, a subpoena can be withdrawn. For example, if the party who issued the subpoena no longer needs the evidence or testimony, they can withdraw it. Similarly, if the person named in the subpoena can provide the evidence or attend court voluntarily, the subpoena may be withdrawn. However, if the subpoena is withdrawn after the person has already taken steps to comply, they may still be entitled to compensation for any costs incurred.
Does a Subpoena mean you are in trouble?
Receiving a subpoena does not automatically mean that you are in trouble or being accused of a crime. In many cases, subpoenas are issued in civil cases or as part of an investigation. For example, a subpoena may be issued to someone who witnessed an accident and has important information about what happened. Alternatively, a subpoena may be issued to a company that has relevant documents or information about a particular matter.
However, it’s important to take a subpoena seriously. If you have been issued with a subpoena, you should seek legal advice to understand your obligations and any potential consequences of not complying. Failure to comply with a subpoena can result in penalties, including fines and even imprisonment.
If you have been served with a subpoena and require legal advice you should speak to avo lawyers in Sydney.
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