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Subpoena survival guide

Glossary

Accused

A person charged with a criminal offence. Also known as a defendant.

Adduce

The term ‘adduce’ is used in court proceedings to describe the process of putting forward or presenting evidence or arguments for consideration by the court. If a party ‘adduces’ evidence of a document, it means they are using the document in court as evidence, for example by questioning a witness about the document.

Affidavit

A written statement made by a person who has sworn an oath or made an affirmation to speak the truth in the presence of another person. This other person must be authorised to administer the oath or affirmation; usually a justice of the peace or a lawyer. An affidavit can be used in some legal proceedings as an application or instead of speaking evidence in court as a witness.

Affirmation

A witness in court must promise the court that they will tell the truth before they give evidence. One way of doing this is called making an affirmation. An affirmation is used by witnesses who do not wish to take a religious oath.

Apprehended Violence Order (AVO)

A court order for the protection of one or more people who fear future violence or harassment from another person (the defendant). The court order sets out a number of things the defendant must not do for a period of time. Although an AVO is not a criminal charge or conviction, if the defendant breaches the order, they can be charged with a criminal offence.

Barrister

A barrister is a lawyer who specialises in standing up and arguing in court and providing advice in specialist areas of law. A barrister usually works on a case with a solicitor; the solicitor deals with more of the paperwork and with maintaining contact with the client.

Best interests of the child

The ‘bests interests of the child’ is the most important principle in family law proceedings about children. It is up to the court to make decisions about who a child will live with or spend time with. The most important consideration is protection from harm, including family violence.

Committal

The formal definition of a committal is a hearing in the Local or Children’s Court to decide if the accused should face a jury trial. All serious charges, including most sexual assaults, commence in the Local or Children’s Court as ‘committals matters’ before they go up to the District or Supreme Court.

Complainant

The alleged victim in a criminal case. For example, in a criminal sexual assault case, the person who says they were sexually assaulted by the accused is called a ‘sexual assault complainant’.

Confidential harm statement

A written statement by a sexual assault victim (or prepared on their behalf) that outlines the harm that would be suffered if the information was released. A confidential harm statement is only seen by the victim’s lawyer and the Judge.

Conduct money

A party who gives a subpoena to another person must pay them a reasonable amount of money to cover the expense of responding to the subpoena.

Consent to release information (waive privilege)

There are strict rules in section 300 of the Criminal Procedure Act 1986 NSW about how a person can consent to the release of information. The consent must be in writing, it must explicitly refer to the material being released and refer to awareness of the Sexual Assault Communications Privilege.

Counselling Communication

Confidential information (either oral or in writing) created during the process of ‘counselling’ a person. Counselling is defined very broadly and can include activities such as psychology, psychotherapy, medical/hospital treatment, financial counselling and other therapeutic practices.

Credibility and credible witness

If something is ‘credible’ it is easily believed. Credibility refers to whether or not something is likely to be true or false. A ‘credible witness’ is someone the court finds is likely to be telling the truth and who is consistent in their version of events.

Crown Prosecutor

A barrister employed by the ODPP to prosecute serious criminal offences. Crown Prosecutors have a duty to act fairly and impartially. They are not the victim’s lawyer.

Defendant

A person charged with a criminal offence. Also known as an accused.

Fact in issue

A key factual issue in the legal proceedings that must be proved or disproved for a party to be successful in their case.

Independent Children’s Lawyer (ICL)

A lawyer in family court proceedings appointed by the court to represent and promote a child’s best interests. The ICL is independent of the court and the parties. Although they represent the child’s interests they are not the child’s personal lawyer and are not obliged to act on the child’s instructions.

Indictable offence

A more serious criminal offence which is usually tried before a jury. Generally these are more serious offences and are prosecuted by the ODPP.

Jurisdiction

The geographical area or subject-matter covered by a legal authority such as a court.

Legitimate forensic purpose

A specific legal phrase often used in relation to subpoenas. In general, there is a ‘legitimate forensic purpose’ when there is a good reason to ask for a document or information because there is a good chance it might be useful to prove something in the case.

Office of the Director of Public Prosecutions (ODPP)

An independent government authority responsible for prosecuting individuals for criminal offences of a more serious nature (indictable offences). Less serious offences (called ‘summary offences’) are prosecuted in the Local Court by NSW Police.

Privilege

Special legal protection to protect the confidentiality of information or evidence where it is in the public interest to prevent that information being disclosed. Think of legal privilege as a ‘shield’ against forced disclosure.

Prior inconsistent statement

Where a person who is a witness in legal proceedings says something happened one way and then later says it happened differently. The later statement is inconsistent with the earlier statement. A prior inconsistent statement can be used by parties in the legal proceedings to support their case that someone is lying or has a poor memory or is confused about what really happened.

Protected confidence

A counselling communication that is made by, to or about a victim or alleged victim of sexual assault. If the person using the service is a victim of sexual assault, it can include medical records and other counselling records that were made before the assault. To be protected, records do not have to be connected to the issue of sexual assault.

Protected confider

A person who has their privacy protected by the Sexual Assault Communications Privilege. Protected confiders include the person who is being counselled, whether or not they are the victim of the sexual assault, and another person or people present to support the victim or to otherwise help the counselling process.

Principal protected confider

The victim or alleged victim of a sexual assault offence whose private information is protected by the Sexual Assault Communications Privilege.

Production/produce

To provide or put forward documents to the court in response to a subpoena.

Redaction

A technique used in legal proceedings to black out certain words or sections of a document.

Registrar

An officer of the court who performs both judicial and administrative functions. They run the court registry, and sit in court to deal with preliminary and procedural matters. They may be legally qualified.

Return of subpoena

The due date for providing documents or appearing at court.

Search warrant

A court-issued authority giving police permission to search a person, place or thing. Search warrants are used to obtain evidence.

Sexual assault

Defined in section 295(1) of the Criminal Procedure Act 1986 NSW as a “prescribed sexual assault offence” which, broadly speaking, can be anything from an act of indecency or worse. It includes the categories of indecent assault, sexual assault and aggravated sexual assault.

Sexual Assault Communications Privilege

A legal protection (privilege) that protects the confidentiality of therapeutic information for victims of sexual assault. It applies in criminal, AVO and some limited civil cases. It does not apply in family law.

Solicitor

A solicitor is a lawyer who can provide advice, prepare legal documents and represent clients in court. Solicitors are ‘officers of the court’ and have a high ethical duty to comply with professional standards. Solicitors must be registered (called ‘admitted’) to practice as lawyers in a legal jurisdiction (state, territory, federal) before they can work in its courts.

Subpoena

A court order requiring a person to attend court to give evidence and/or produce documents.

Substantial probative value

If information, a document or thing has ‘substantial probative value’ it means it has a more than significant chance of proving a key fact in the case.

Third party

A person who is not a party to a court proceeding.