Area of Law – Evidence

An Article about subpoena in criminal case

Evidence – Subpoena in criminal case
Subpoenas (or subpoenae) are the way you get people to come to Court and/or bring documents with them.

Subpoenas are a very important tool for a criminal defence lawyer. We often find ourselves subpoenaing the telephone records (incoming, outgoing and tower location) of witnesses so that we can establish where people were and exactly who rang who.

A subpoena allows you to follow up the statements that the Police have provided and start pointing out the problems with what they are alleging.

Following is some case law on subpoenas:

Can inspect documents that go only to credit
According to the authorities, an accused is prima facie entitled to inspect any document which may give him an opportunity to pursue a proper and fruitful course in cross-examination, whether it goes to a matter in issue or simply to credit. As opposed to the position in civil proceedings, in criminal proceedings the test is no stricter for documents which go solely to credit than for those which may go to a matter in issue. The test is whether the material is properly capable of acceptance, and if so would so affect credit of a witness that, having regard to the part played in the trial by that witness, it is likely that a jury would have arrived at a different verdict.

Thomas v Campbell & Ors [2003] VSC 460

Need to identify purpose in seeking access (can be just credit)
Authority establishes and common sense dictates that when a judge or magistrate is faced with a subpoena to produce documents and objection is taken to their production, the judge or magistrate should require counsel for the accused to identify his purpose in seeking access to the documents. If the reason stated appears to be a legitimate forensic purpose, as it would if it were to aid cross examination as to credit of a principal prosecution witness, but the prosecution persists in its objection to production, the judge or magistrate should ordinarily inspect the documents himself in order to reach a view upon the matter.

Thomas v Campbell & Ors [2003] VSC 460


Date: 01/09/2009