Subpoena

In both criminal and civil matters, you may be needing to request or be subject to a subpoena.

The scope of Subpoenas ranges from: -

1. For a person to attend Court to give evidence in a matter; or
2. For a person to produce documents outlined in the scope of the subpoena; or
3. Both to give evidence and produce document(s).

Subpoenas must be filed with the Court and then served personally on the person named in the subpoena.

At Court subpoenas have threshold questions when it comes to documents.

For instance, before the Court will grant access to document outlined in a subpoena, a party to the proceedings who filed the subpoena must persuade the Court of two (2) threshold question, being: -

1. That there is a legitimate forensic purpose for granting access;
2. That the document(s) ‘on the cards’ will materially assist the opposing party.

This above two (2) questions are to avoid a ‘mere fishing’ expedition.

The law says that a “legitimate purpose is demonstrated where the Court considers, having regard to its fundamental duty to ensure a fair trial, that there is a reasonable possibility the document(s) will materially assist the defence”. (1)

...”It may be enough that it appears to be ‘on the cards’ that the documents will materially assist the defence.” (2)

The threshold questions appear to be low however, they are still a threshold to overcome.

Nevertheless, even when the threshold is satisfied objections to documents and or a person to give evidence can still be formulated.

Some examples of objections to subpoenas are: -

1. Legal professional privilege – being a document(s) or conversation between a client and lawyer  
2. Self-incrimination privilege - being a document or evidence that will result in the person admitted to something done against the law.
3. Public interest immunity
4. Religious confessions privilege
5. Professional confidential relationship privilege - for example, between a doctor and patient, or social worker and a client.
6. National security privilege (‘matters of state’) – ASIO documents are commonly in this category.
7. Sexual Assault Communications Privilege – between a therapist, doctor, social worker, and a victim of sexual assault)

If you or someone you know has been issued with a subpoena or is facing a criminal or civil matter and you are attempting to source a document(s) and/or a person to give evidence, contact us at Rep-Revive Criminal & Employment lawyers on 9198 1996 for a free initial consultation on all criminal matters.

(1) Ragg v Magistrates Court of Victoria [2008] VSC 1 at [96]; see also R v Saleam [1999] NSWCCA 86 

(2) Alister v The Queen [1984] HCA 85