What is a Subpoena and what are the legal ramifications if I ignore it? Do I need to engage a lawyer for advice?
What is a Subpoena?
A subpoena is an order from the Court requiring a person to attend Court to give evidence or to produce documents to the Court.
In New South Wales most subpoenas will be issued under the Criminal Procedure Act 1986. Under the Act a subpoena includes any of the following:
(a) A subpoena to give evidence which means a written order requiring a person to attend at the Court as a witness to give evidence;
(b) A subpoena for production which means a written order requiring a person to attend at the Court and produce a document or thing; and
(c) A subpoena both to give evidence and for production which means a written order requiring a person to attend at the Court as a witness to give evidence and to produce a document or thing.
What happens if I ignore a Subpoena?
If you ignore a subpoena the Court has the power to issue a warrant for your arrest.
The Court will only issue a warrant for your arrest if it is satisfied that:
(a) You have not complied with the subpoena; and
(b) The subpoena was served on you and was legally valid; and
(c) No just or reasonable excuse has been offered for the failure to comply with the subpoena.
Do I need to engage a lawyer?
If you have been served with a subpoena it is a good idea to obtain legal advice. This advice will include guidance on whether you are legally required to comply with the subpoena or whether an exception may apply.
In the first instance, an application to set aside the subpoena can be made to the Court on a number of grounds. For example, if you believe the subpoena is being used as a mere fishing expedition or if the number of documents listed in the subpoena is oppressive.
If the Court does not set aside the subpoena you may still be able to obtain an order that you do not need to comply with the subpoena because:
– The evidence or documents sought have no relevance to the proceedings;
– The evidence or documents sought are subject to legal professional privilege;
– There is a public immunity issue; or
– The evidence or documents are subject to a sexual assault communications privilege.
If you have been served with a subpoena the worst thing to do is ignore it. This is because the Court has the power to issue a warrant for your arrest in the event that you don’t comply with the subpoena. The best thing to do is seek legal advice on whether any exceptions apply and have your legal representative attend Court with you to argue on your behalf.
If you have been served with a Subpoena and you need to understand your legal obligations call Frank Boitano at Barwick Boitano today on (02) 9630 0444 or email on fjb@bblawyers.com for an appointment.
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