Subpoenas Explained

A subpoena is a formal court order requiring a person or organisation to either produce specified documents to the court, attend court to give evidence, or both. In criminal proceedings, subpoenas are commonly issued to bodies such as hospitals, schools, phone companies or government agencies to obtain records relevant to a case, as well as to individual witnesses required to give evidence in person.

A subpoena is not a request — it is a legally binding order, and failing to comply without a lawful excuse can constitute contempt of court, which carries its own serious consequences, separate from whatever the underlying criminal matter concerns.

If you are served with a subpoena, the first step is to carefully check the documents or attendance it requires and the date by which you must comply, and to gather any responsive material well in advance of that date rather than at the last moment. Subpoenaed documents are generally produced to the court itself, not directly to either party, and the parties are then given an opportunity to inspect them, subject to any objection.

If complying would be genuinely burdensome, or if the documents sought include sensitive material such as medical, counselling or personal records, it is important to get legal advice promptly, since there are established processes for raising these concerns with the court before the compliance date, rather than simply ignoring the subpoena.

A subpoena can be challenged on several grounds, including that it is oppressive, that it amounts to a "fishing expedition" without a legitimate forensic purpose, that it seeks documents with no real relevance to the proceedings, or that it seeks to override a specific legal protection, such as sexual assault communications privilege for counselling records in certain sexual offence matters.

Where a subpoena seeks sensitive personal records, the person the documents concern — not just the party who received the subpoena — often has standing to object to their production or to seek that access be restricted, which is a particularly important protection in sexual offence and domestic violence matters.

Subpoenas are not only issued by the prosecution — a defence lawyer can also issue subpoenas to obtain material relevant to a client's case, such as CCTV footage, incident reports, or records that may support a defence or challenge the reliability of a prosecution witness.

Because subpoenas can take time to prepare, issue and have complied with, identifying material that may need to be subpoenaed early in a matter — rather than close to a hearing date — is an important part of properly preparing a defence.