A subpoena is a court order made by a party to a proceeding.  It requires the person or organisation subpoenaed to attend court to either give evidence and/or produce the documents or things requested in the subpoena.  Failure to comply with a subpoena may amount to a contempt of court.

Despite their ubiquity in criminal proceedings, the law of subpoenas is routinely misunderstood by the public and legal practitioners alike.

A party who wishes to obtain documents from a third party relevant to their criminal proceedings may file a subpoena.  Assuming it is accepted for filing by the Court, the subpoena has the force of a court order.  In relation to documents, the person who has been subpoenaed must return or produce the documents to the Court in the first instance, not the party who issued the subpoena.  Once the documents have been produced, it is for the Court to decide whether to release them to the parties, and whether any conditions (such as whether the documents may be copied) should be attached to their use. 

In a criminal law context, subpoenas may be utilised for a variety of purposes.  It is common to subpoena the police and other government agencies, especially where there might be concerns about the adequacy or thoroughness of the initial police investigation.  Where it is not otherwise possible to access documents relevant to a case, subpoenas are an important tool to ensure that all parties have access to documents and other evidence that may material impact on the case.

Because of the potential for subpoenas to be used as a “fishing expedition”, it is necessary that a subpoena be issued for a “legitimate forensic purpose”.  The leading Queensland case in this area is R v Spizzirri [2000] QCA 469.  The decision clarifies the common misconception that a “legitimate forensic purpose” is very broad and includes matters such as the credibility of a witness.  Importantly, it is for the Court, and not the subpoenaed party, to decide whether or not there is a legitimate forensic purpose, and the interests of justice generally recognise that a judge should be cautious before denying an accused person the opportunity to inspect or rely upon subpoenaed documents.

One important restriction relating to subpoenaed material is that the parties must not disclose or use the documents outside of the proceeding for which they were produced.  Deviation from the obligation (known as the Harman undertaking) may, depending on the circumstances, amount to a contempt of court.  Generally, the parties are required to return documents produced under subpoena to the Court at the end of the proceedings.

Get help from a criminal lawyer

The lawyers at Jasper Fogerty Lawyers understand how subpoenas may be properly used in a criminal proceeding, as well as the associated tactical and forensic considerations that come into play.  We appreciate that the criminal justice system is stressful for persons who have been charged with an offence.  It is critical that you obtain early advice and representation from experienced lawyers to ensure that you achieve the best outcome possible in the circumstances.

Contacting Jasper Fogerty Lawyers

📞        1800 ASK JFL

📧       info@jasperfogerty.com.au

About the author:

Rebecca Fogerty is one of Queensland's most highly regarded solicitors in criminal law. She has extensive criminal law litigation experience and a strong interest in the use of subpoenas in a fair trial. You can read more about Rebecca here