Taking the stand: What are my rights if I get called as a witness to give evidence in court?


Many of us have watched those scenes in movies and TV shows, where an unsuspecting character arrives on a bike, pulls a letter from a pizza box and belts out “you’ve been served”.

While it doesn’t happen like this in real life (well, not always), being called to give evidence in court can be a daunting experience.

Depending on your level of involvement and the nature of the case, being a witness can be emotionally traumatic and stressful.

If you have been issued with a subpoena, you can’t ignore it. This article will help explain what you need to do, and what your options are.

What is a subpoena?

A subpoena is a written order issued by a court, as a way of obtaining evidence for a hearing or a trial.

If you’ve been a witness to a crime or have documentary evidence which could be valuable in the prosecution of a matter, you may be served with a subpoena. If you do, you will need to attend court.

There are three different types of subpoena: for production (you are required to provide documents but don’t need to appear in court), for evidence (you will need to appear in court but don’t need to give documents) or a subpoena for evidence and production (you will need to do both).

A subpoena requiring you to give evidence, must specify the date, time and place of attendance. It also must include the last date the subpoena can be validly served, which can be as few as five business days before you are required in court.

Can I object to a subpoena?

In NSW, it is a criminal offence to ignore a subpoena. If you do, you are breaking the law and can be arrested. You could also be found guilty of contempt of court (interfering with court proceedings) and may have to face legal costs if you don’t turn up.

You can, however, object to a subpoena if you have lawful reason to do so. If you were not served on time, not given enough conduct money (see next question), or the documents you’ve been asked to provide are privileged (national security interests, for example), you could have grounds to contest the subpoena.

Who is going to pay for me to go to court?

The party issuing the subpoena, is required to pay ‘conduct money’. This should cover return travel by public transport from the person’s place of work or residence, to the court. The minimum payment is $25, but if you are left seriously out of pocket due to missing work, you can apply to have those costs reimbursed.

Do I need a lawyer?

If you’re worried about what the subpoena is asking you to do or the documents you’re being asked to provide, it is always a good idea to seek independent legal advice. If the material the other party is requesting seems irrelevant or sensitive, a lawyer can help you navigate your options.

Can I talk to other people about the case and can I bring a friend to court with me?

If you are due to give evidence as a witness in court, you must not discuss your testimony with anyone else, especially other witnesses.

It’s worth noting, you can bring a friend or family member to court with you. However, they may not be allowed into the courtroom.

The NSW courts offer support services for witnesses and can give you advice about the court process as well as counselling if needed.