Subpoenas (Victims)

Subpoenas

If the police need you to attend court to give evidence, they may give you a subpoena. A subpoena is a court order that tells you to come to court to give evidence, give documents to the court, or both.

How you can be served with a subpoena

A subpoena must be served within a reasonable time. This must also be and at least 5 days before the last day that you have  to follow it.

A subpoena must be served on you – the person named in the subpoena. This can be done by:

• leaving it with you
• sending it by post or fax to your home address
• emailing it to your email address
• giving it to your lawyer, with their consent.

If you refuse to accept the subpoena, the server can put it down near you and tell you what it is.

If you can’t be served in any of these ways, the police may apply for an order for substituted service so that they can serve you in a different way.

If you do not follow the subpoena

You must follow a subpoena unless you have a legal reason not to. If you don't, the police can ask the court to issue a warrant for your arrest.

The court can issue a warrant if:

• the police or prosecutor applies - the court can’t issue a warrant by itself
• the police followed the rules for serving a subpoena
• you didn’t follow the subpoena, and
• you have not given the court a reasonable excuse for not following the subpoena.

If you are arrested, you may be charged with contempt of court.

When you do not have to give evidence

If you are subpoenaed, you may not have to give evidence if:

• the accused pleads guilty to all charges
• the prosecutor decides not to use your evidence
• the prosecutor decides there is not enough evidence to continue with the case
• your police statement is accepted as evidence and the defendant chooses not to cross-examine you
• the trial is aborted (cancelled).

If you give evidence at the hearing, you must tell the truth. If you don't, you can be charged with a criminal offence.

If you have received a subpoena and you don't want to go to the hearing, you should get legal advice.

Sexual assault communications privilege

If you report a sexual assault, your counsellor may receive a request or a subpoena to produce your counselling records.

The information in your counselling records may be protected by the sexual assault communications privilege or another legal privilege.

The sexual assault communications privilege protects communications between a victim of sexual assault and a counsellor, doctor, or other person giving services in a confidential therapeutic setting. It limits the disclosure of the communications that are protected in criminal and apprehended violence order (AVO) cases. It covers a wide range of confidential information including:

• counselling or caseworker notes
• health files
• drug and alcohol records
• letters, and
• referrals between health professionals.

The privilege also means that a victim can't be forced to share the identity of their counsellor.

If your records are protected by privilege, it is up to you whether they are released and used as evidence in court. Only you can waive (give up) your right to keep your records private. You may want to keep some, or all, of your counselling records confidential.

Claiming privilege

Victims

If you are the victim of a sexual assault, your counselling records may be protected by the sexual assault communications privilege.

You may be able to use the privilege if you are asked to provide information about the name of your counsellor.

If the records are subpoenaed, you and your counsellor should get legal advice about claiming the privilege so that the records can remain confidential.

If your personal information is not protected by the sexual assault communications privilege, it may still be protected by another legal privilege.

You can c​ontact the Sexual Assault Communications Privilege Service for advice and representation.

Counsellors

Before you respond to any request for information for your client's records, you should think carefully and get legal advice. The records you have from counselling a victim of sexual assault may be protected under the sexual assault communications privilege. There are also other grounds that can mean you do not need to supply all or some of your records. For example, you may be able to object to the validity of a subpoena.

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

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

Last updated: June 2026