Subpoena | The Defenders: Criminal Defence Lawyer Sydney & Parramatta



If you were recently served a subpoena, you may have a number of questions. Whatever the case, you may also wonder whether you can lawfully object to the serving of the subpoena or can I refuse to comply with the subpoena.There are only certain circumstances that this can be done.

What is a Subpoena?

A subpoena is a court order to appear as a witness, which is otherwise known as a subpoena to give evidence. Also, the subpoena could be served requiring you to produce certain documents or evidence. This is called a subpoena for production.

A subpoena is a court-issued document that requires you to appear at a court hearing. Regulations around issues concerning the subpoena in NSW will most likely require that you comply with the subpoena. However, if any of the regulations were not adhered to prior to you being served, you may not have to comply with the subpoena.

You should seek legal advice if you feel complying with the subpoena to attend Court or produce documents is an unreasonable request. There are some circumstances where you can ask the court to set aside the subpoena. This is a better alternative than simply ignoring the subpoena and choosing not to comply. Failing to comply with the subpoena can lead to arrest and criminal charges.

Answering a Subpoena in NSW

You may wonder if you are really required to answer the subpoena in NSW. Well, just as you are legally obligated to comply with a valid subpoena, being served with this legal documents are subject to strict rules. Typically, these rules cover time, service and the particulars of the types of documents being requested.

This may raise questions about problems associated with the subpoena if certain rules were not followed. The option to set the subpoena aside before complying is valid under certain grounds. Some of these include:

  • Vague or non-specific terms of the subpoena related to the exact documents you are required to produce.
  • The documents are being used to see whether there is a potential case instead of being factually relevant to the actual case.
  • The documents being subpoenaed are not relevant to the case.
  • The documents have confidentiality restrictions that would cause you to breach the terms by providing them to the court.

Although you may feel your situation fits into one of these reasons to set aside a subpoena you must speak with a lawyer. It is always best to make sure that you have grounds to request to set aside a subpoena.

A lawyer can give advice and assist you with completing the process.

Getting a Subpoena Set Aside

Once it is established that you can have the subpoena set aside, you will have to serve a ‘notice of motion’ to the party who requested the subpoena. This is done after filing the notice with the court that originally issued the subpoena.

The notice should clearly explain your grounds for requesting that the subpoena be set aside. Additionally, it is a good idea to include all supporting evidence for the request.

When your objections are about the terms of the actual subpoena, or wording, you may receive a new subpoena from the issuing party once they are made aware of your motion. There are also other cases when the terms and requests of the subpoena could be altered if they are found to be too burdensome for you to comply.

Keep in mind that applying to set aside a subpoena does not mean you will be successful. It is possible that your claim is not considered reasonable and you will still be required to comply with the original subpoena. In other cases, you will have to comply with the new terms of an altered or amended subpoena.

Checklist of Legal Rules about a Subpoena

This information is helpful to understand the legal rules about a subpoena, including how you should be served correctly.

First, the subpoena must be served to the person whose name appears on the court order. Several methods of service are acceptable:

  • Leaving it with the named person on the subpoena
  • Leaving the subpoena with the general manager of a prison, if you are in prison at the time it is served. Other options are to send it by fax, post or a different electronic transmission to the general manager
  • Sending it to your home address via fax or post
  • To your email address
  • Leaving it at your lawyer’s ‘address for service’ as long as your lawyer consents to receiving it. The party issuing the subpoena could also send it to your lawyer’s email, or by fax or post to the lawyer’s address.

If you decide you will not take issue with the way the subpoena was served, complying gives an implied acceptance of how it was served. Even if you refuse to accept the service of a subpoena, the person serving can place on the ground in front of you after telling you its nature. Your refusal does not dismiss the fact that it was lawfully served.

If the subpoena you receive requires production of documents, the party serving you should provide conduct money. Basically, this is payment for any reasonable expenses you may have in order to comply with the terms of the subpoena. You should receive the conduct money when you are served, or within a reasonable time afterward.

Another rule that applies to the subpoena is the time limit you have before appearing in court. Typically, you should have at least five days before appearing before the court is necessary. When it is a subpoena to produce documents, your time limit is usually a minimum of 21 days.

The party serving may request less time by applying for a short service of a subpoena. This is something you also may want to dispute. The grounds for defending this objection in court is impracticality and unreasonableness.

A third reason to object to the subpoena is when it represents an abuse of process or is oppressive towards you. For example, it may seem that the subpoena is requiring that you produce a volume of material that is most likely not associated with the scheduled hearing. Lawyers refer to this as a fishing expedition when a subpoena is served just to discover whether you have certain documents that can strengthen the case. This is an inappropriate use of the subpoena process since it must ask for specific documents. In addition, the subpoena for production might place an undue burden or pressure on you. This is the case when there is no particularity in the documents.

Grounds for setting aside the subpoena are applicable in this situation. However, you may not be successful in setting aside the entire subpoena. As mentioned previously, the party issuing the subpoena may simply narrow the scope of the requested documents. Their search is particularised for specific documents that are required. If nothing else, this relieves you of the burden of complying. All parties that are connected to the action or litigation will be able to inspect the documents you are asked to produce. This is typically included under the order of the subpoena.

Therefore, mechanisms are in place for you to use in defending against a subpoena. You may object to needing more time to comply when time limits are not met in the notice. You have a right to request that the burden of complying be alleviated by requesting better particularity from the other party. You may also object to the way in which it was served. Each reason is valid, and if successfully defended, will help you avoid any negative consequences from simply not complying.

Documents You Need to Produce in Response to the Subpoena

If you are unable to fully object to the serving of a subpoena in NSW, you will need to produce the requested documents. Any broad or vague requests should be cleared up.. You should never answer the request by sending the documents directly to the issuing party.

Generally, when sending the documents, make sure the documents include a copy of the subpoena. Complete the “Declaration by Subpoena Recipient” fully. This part of the process involves setting out whether you have provided originals or copies. Additionally, you can also indicate whether you want the documents to be returned to you once the proceedings are completed. This is relevant to understanding that producing copies of documents is permissible. The exception is if the subpoena specifically requests that you produce originals. The Court will destroy the documents if you do not request in the declaration to have the documents returned.

The important thing to remember is that although you have been served with a legal document, you also have legal rights in the process. You may want to contact a criminal defence lawyer who can give you specific advice relevant to your situation. If you can set the subpoena aside, the lawyer will know how to do it.