Criminal Procedure Act 1986 No 209
Current version for 28 October 2014 to date (accessed 21 December 2014 at 01:25)
Chapter 4Part 3

Part 3 Attendance of witnesses and production of evidence in lower courts

220   Application

In addition to any other proceedings to which this Part applies, this Part applies to any proceedings prescribed by the regulations for the purposes of this section.

221   Definitions

In this Part:

party means a prosecutor or an accused person in, or any other party to, proceedings to which this Part applies.

person named in a subpoena means the person to whom the subpoena is addressed.

subpoena includes any of the following:

(a)  a subpoena to give evidence,
(b)  a subpoena for production,
(c)  a subpoena both to give evidence and for production.

subpoena both to give evidence and for production means a written order requiring the person named to attend as directed by the order as a witness to give evidence and to produce a document or thing.

subpoena for production means a written order requiring the person named to attend as directed by the order and produce a document or thing.

subpoena to give evidence means a written order requiring the person named to attend as directed by the order as a witness to give evidence.

222   Issue of subpoenas

(1)  A registrar, if requested to do so by a party to proceedings, is, subject to and in accordance with the rules, to issue to the person named any of the following subpoenas:
(a)  a subpoena to give evidence,
(b)  a subpoena for production,
(c)  a subpoena both to give evidence and for production.
(2)  If the prosecutor in proceedings is a public officer or a police officer, the officer may, subject to and in accordance with the rules, issue any such subpoena. The subpoena is to be filed and served in accordance with the rules.
(3)  A subpoena to give evidence and a subpoena for production may be issued to the same person in the same proceedings.
(4)  A party may require a subpoena for production to be returnable:
(a)  on any day on which the proceedings are listed before a court, or any day not more than 21 days before any such day, or
(b)  with the leave of the court or a registrar, on any other day.

223   Time for service of subpoenas

(1)  A subpoena must be served within a reasonable time and at least 5 days before the last day on which it must be complied with.
(2)  A registrar may, on application by the party concerned, permit a subpoena to be served later than the time permitted by subsection (1). The later time must be endorsed on the subpoena by the registrar.
(3)  A subpoena may be served by delivering a copy of the subpoena to the person named or in any other manner prescribed by the rules.

224   Conduct money

Unless a court otherwise orders, a subpoena issued at the request of a party other than a prosecutor who is a public officer or a police officer is not to require the person named to attend or produce any document or thing on any day on which his or her attendance is required unless an amount prescribed by the rules for the expenses of complying with the subpoena in relation to that day is paid or tendered to the person at the time of service of the subpoena or not later than a reasonable time before that day.

225   Limits on obligations under subpoenas

The person named is not required to produce any document or thing if:
(a)  it is not specified or sufficiently described in the subpoena, or
(b)  the person named would not be required to produce the document or thing on a subpoena for production in the Supreme Court.

226   Production by non-party

(1)  If the person named in a subpoena for production is not a party to the proceedings, the subpoena is, unless a court otherwise orders, to permit the person to produce the document or thing to the court specified in the subpoena not later than the day before the first day on which the person’s attendance is required, instead of attending and producing the document or thing as required by the subpoena.
(2)  The rules may make provision for or with respect to the production of documents or things produced to a court under subsection (1), and the return of the document or thing, and any related matters.
(3)  Nothing in this Part affects the operation of Division 1 of Part 4.6 of the Evidence Act 1995 (Requests to produce documents or call witnesses).

227   Subpoena may be set aside

(1)  A court may, on application by the person named in a subpoena, set aside the subpoena wholly or in part.
(2)  Notice of an application under this section is to be filed and served as prescribed by the rules on the party on whose request, or by whom, the subpoena was issued.

228   Inspection of subpoenaed documents and things

(1)  A party may, if a court so orders:
(a)  inspect documents or things produced in compliance with a subpoena, and
(b)  take copies of any documents so inspected.
(2)  Any such order may be made on such terms and conditions as the court thinks fit.
(3)  A registrar may exercise the function of a court to make an order under this section unless:
(a)  the court otherwise orders, or
(b)  a party, the person named in the subpoena or a person claiming privilege in respect of the document has notified the court in the manner prescribed by the rules that the party or person objects to the making of an order under this section.

229   Action that may be taken if person does not comply with subpoena

(1)  A party who requested, or issued, a subpoena may apply to the court for the issue of a warrant under Part 4 for the arrest of the person named if the person named has not complied with the subpoena.
(2)  The court may issue the warrant if satisfied that:
(a)  the person named has not complied with the subpoena, and
(b)  the requirements of this Part for subpoenas were complied with and no just or reasonable excuse has been offered for the failure to comply.
(3)  A Magistrate or an authorised officer before whom a person is brought on arrest on a warrant issued under this section may, if bail is not dispensed with or granted, issue a warrant:
(a)  committing the person to a correctional centre or other place of security, and
(b)  ordering the person to be brought before a court at the date, time and place specified in the order.
(4)  The Magistrate or authorised officer must give notice of the date, time and place set to the party who issued or requested the subpoena.
Note. Division 2 of Part 4 sets out procedures for arrest warrants generally.

230   Application of Bail Act 2013

(1)  A court may make a bail decision under the Bail Act 2013 in respect of a person brought before the court after having been arrested under a warrant referred to in section 229.
(2)  The Bail Act 2013 applies to the person as if:
(a)  the person were accused of an offence, and
(b)  the proceedings in which the person is required to be examined or produce a document or thing were proceedings for that offence.
(3)  Bail may be granted for the period between:
(a)  the person’s being brought before a court under a warrant for the purpose of being examined as a witness or producing a document or thing, and
(b)  the person’s being examined as a witness or producing the document or thing.

231   Action that may be taken if witness refuses to give evidence

(1)  This section applies to a person who:
(a)  appears before a court on a subpoena, or
(b)  appears before a court on bail after being arrested under a warrant after failing to comply with a subpoena, or
(c)  is brought before a court under a warrant of commitment after being so arrested,
to give evidence, or produce any document or thing, or both.
(2)  The court may order that a warrant be issued for the committal of a person to whom this section applies to a correctional centre for a period not exceeding 7 days if the person refuses, without offering any just cause or reasonable excuse:
(a)  to be examined on oath, or
(b)  to take an oath, or
(c)  to answer, after having taken an oath, any questions that are put to the person concerning the subject-matter of the proceedings, or
(d)  to produce the document or thing.
Note. Division 3 of Part 4 sets out procedures for warrants of commitment generally.
(3)  However, the person is to be released before the expiration of those 7 days if the person:
(a)  consents to be examined on oath and to answer questions concerning the subject-matter of the proceedings, or
(b)  produces the document or thing.
(4)  This Part applies in relation to a subpoena to the exclusion of section 194 (Witnesses failing to attend proceedings) of the Evidence Act 1995.
(5)  In this section, a reference to a person who appears before a court on bail after being arrested under a warrant after failing to comply with a subpoena includes a reference to a person in respect of whom bail has been dispensed with after being so apprehended.

232   Rules relating to subpoenas

The Rule Committee may make rules for or with respect to the following matters:
(a)  the form of subpoenas,
(b)  the production of documents or things to the registrar and the inspection of the documents or things,
(c)  the return of subpoenas to parties,
(d)  conduct money,
(e)  hearing of objections to subpoenas.
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