Subpoenas FAQs

What is a ​​subpoena?

A subpoena is a court order that tells someone to produce something and/or give evidence at a hearing or trial. 

There are three different kinds of subpoenas:

• Subpoena for Production
  
• Subpoena to Give Evidence
• Subpoena for Production and to Give Evidence. 

A subpoena can only be issued when a case is before a court. A court can’t make an order unless there are court proceedings in progress. 

For more information, see Subpoenas on the Ways to get help section of our website.

Do I have to go to court ​​if I have received a subpoena?

You should carefully read what the subpoena says. Some subpoenas say that you must attend court to give evidence. Other subpoenas say that you must provide documents or things to the Court. Some subpoenas require you to do both.

The subpoena is a Court order. If you don't attend Court or provide the documents to the Court by the date on the subpoena, a warrant can be issued for your arrest. 

There are some grounds on which you can challenge a subpoena. If you don't want to do what the subpoena tells you to do you should get legal advice.​ 

For more information, see Subpoenas on the Ways to get help section of our website.

If the information that is being subpoenaed relates to a sexual assault, you can get advice from the Sexual Assault Communications Privilege Service. 

For more information, see the Victims rights topic.

Are my ​expenses paid?

When you receive a subpoena, you may have to spend money to attend Court and/or to produce documents to the Court. For example, if you have been asked to give evidence at Court you may have to pay a train fare to attend Court. If you have been asked to provide documents, you may have to pay for photocopying. 

You may be entitled to be paid conduct money for these expenses. 

If the subpoena was issued by an ordinary person, they must give you conduct money to cover your expenses before you comply with the subpoena. The expenses must be equivalent to the scale of allowances paid to witnesses. For expenses to cover production of document costs, they must reasonable.

If the subpoena was issued by the NSW Police or Office of Director of Public Prosecutions or public officer, you can claim for your expenses after you have complied with the subpoena. If expenses are for lost income, wages or salary, you can claim a limited amount. You should talk to the person who issued the subpoena about this.

For more information, see Witness entitlements and claims on the ODPP website.

If you don't think you have received enough conduct money, you should get legal advice.

​Does the person who subpoenaed me have to pay any loss I have in wages​​?

If you were subpoenaed by the NSW Police, The Office of the Director of Public Prosecutions (ODPP) or public officer and you lost income when you attended Court, you may be paid a limited contribution. 

For more information, see Witness entitlements and claims on the ODPP website.

If you want to make a claim, you can complete the Claim for Payment of Witness Expenses form. You can also get a copy of this form from the ODPP officer or Police Officer handling your case. 

The amounts are different for expert witnesses. An expert witness is a person who is subpoenaed to give expert evidence in Court, for example, a doctor to give evidence about a medical condition.

If you were subpoenaed by anyone other than the police or ODPP, they are required to pay you conduct money to that is equivalent to the scale of allowances paid to witnesses and reasonable expenses for production of documents.

For more information, see Subpoenas in the Ways to get help section of our website.

Does my employer​​ have to pay me to attend court as a witness?

Your employer doesn't have to pay you for the time you would spend as a witness at court. However, you may be entitled to some type of leave that would allow you to still get paid, for example, annual leave. You should discuss this with your employer.

What happens if ​​I don't attend court?

If you have received a subpoena to give evidence, you must go to court. If you don't, and you don't have a reasonable excuse for not attending, the Court may order a warrant for your arrest and the police may bring you to the Court.

If you can't attend for medical or any other reasons, you should contact the person that subpoenaed you or the Court as soon as possible.

What if the subpoena was served late and I didn't have enough notice?

A subpoena must be served within a reasonable time and at least five days before the court date. An exception to this is where the Court gives permission for a subpoena to be served with less than five days' notice.​

If you didn't get enough notice and were served late, you may not have to comply with the subpoena.

Failin​​​g to comply with a subpoena (without a reasonable excuse) is a serious matter and the Court can issue a warrant for your arrest. You should get legal advice if there is a warrant for your arrest.

What if I refuse to accept service of the​ subpoena?

If a subpoena was issued by an ordinary person, it is served if it is:

• emailed
  
• mailed (to your residential address)
  
• faxed, or 
• given to you in person.
  

If you refuse to accept the subpoena, it may be served by leaving the document in your presence after the person serving you tells you that it is a subpoena.

If the subpoena was issued by the police or public officer, it is served if it is:

• emailed (to business email address)
  
• mailed (to your business address) 
  
• faxed (to business address), or 
• given to you in person. 

If you refuse to accept the subpoena, it may be served by leaving the document in your presence after the person serving you tells you it is a subpoena.

If the person has a lawyer and both of you consent, you can mail, email, fax the subpoena or leave it with the person’s lawyer’s address for service.

What support ​is available​​ to​​ witnesses?

The Office of the Director of Public Prosecutions has a Witness Assistance Service that is available for all prosecution witnesses in the District and Supreme Courts. This service is designed to provide you with information and support.

Y​ou can also contact the Women's Domestic Violence Court Advocacy Service (WDVCAS) if you are a woman and a victim of domestic violence and have to attend court for Apprehended Violence Order proceedings.​

I am a counsellor and have received a subpoena for my client’s records, do I have to comply?

Before you respond to any request for information for your client's records, you should get legal advice. 

The records you have from counselling a victim of sexual assault may have a special protection under the sexual assault communications privilege. There could also be other grounds that you can rely on that mean you don't need to supply all or some of your records.

For more information, see Their privacy is your priority in the Ways to get help section of our website.

You can contact the Sexual Assault Communications Privilege Service for advice.

I want a witness to come to court, how do I give them a subpoena?

To apply for a subpoena, you must fill out the approved form and file it with the Court.

There are three different kinds of subpoenas:

• Subpoena for Production
  
• Subpoena to Give Evidence
• Subpoena for Production and to Give Evidence.
  

You can download a copy from the Forms page on the Local Court website.

You may need permission from the Court to apply for a subpoena. The Court can choose to refuse to issue a subpoena if it would be an abuse of process or oppressive on the person it is issued to.

There may be a limit to how many subpoenas you can apply for without the Court's permission.

For more information about applying for a subpoena when pleading not guilty in court, see Step by step guide - Subpoenas in the My problem is about section of our website.