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Subpoena survival guide

Legal system basics

What are the different areas of law?

There are three broad categories of law in Australia: criminal, civil and family. In this guide, most of the law relating to crime and to civil cases is state law, and most of family law is Commonwealth law.

This guide will cover subpoenas and other requests for information in each of these areas of law.

Criminal law. In criminal cases, such as a sexual assault trial, the state takes an accused person to court. The state is represented by the prosecution: the police or the Office of the Director of Public Prosecutions (ODPP).

Civil law is everything that is not criminal law: employment law, personal injury, discrimination, immigration, defamation, contracts, wills and estates, property. Family law is part of civil law, but is usually considered as a separate category.

Family law applies nationally through the Family Law Act 1975 (Cth). Family law deals with disputes about the division of property and parenting arrangements for children after a marriage or de facto relationship ends.

Care and protection matters are technically in the civil jurisdiction even though the state is one of the parties. Under care and protection law the state is empowered, with checks and balances, to intervene in families to protect children. Although care cases are civil matters, they are often considered as falling within the ‘family law’ category.

Victims support is part of the civil law system in which applicants seek financial assistance, counselling and/or a recognition payment following acts of violence committed in NSW. Victims Services decides applications “on the papers” using written evidence from sources such as NSW Police, hospitals, general practitioners, psychologists and counsellors and other support services.

Which court?

Most NSW courts deal with both criminal and civil cases. There are also many specialist courts and tribunals.

Criminal courts

Most criminal cases are heard in the Local Court, the Children’s Court, the District Court or the Supreme Court. The severity of the crime and the age of the person charged will determine which court.

Civil courts

Civil cases may be heard in any of the following courts, depending on the amount of money at stake and the type of case:

  • Local Court
  • District Court
  • Supreme Court
  • Many specialist courts and tribunals.
Family courts

Family law matters are dealt with in the Family Court of Australia, the Federal Circuit Court and (rarely) in state and territory Local Courts.

Children’s court

The Children’s Court in NSW handles two kinds of cases:

  • criminal charges where the accused is under 18 at the time of the alleged crime; and
  • ‘Care’ or ‘Care and protection’ matters, where Community Services (Family and Community Services [FaCS, formerly DOCS]) has intervened in the care of a child (often related to removing a child from their parents or home) and seeks court orders about the future care of the child.

Sexual assault cases

Adult accused

Sexual assault prosecutions in NSW are divided among the courts in this way:

  • Local Court: indecent assault and sexual assault committals
  • District Court: all sexual assaults and appeals from the Local Court
  • Supreme Court: the most serious of cases (usually involving homicide) and appeals from the District Court (in the Court of Criminal Appeal)
Child accused

Where the accused person is under 18 at the time of the alleged sexual assault offence, and under 21 when charged, the case will start in the Children’s Court. As a general rule, most matters are finalised in the Children’s Court but very serious charges will be committals to the District or Supreme Court. Appeals from the Children’s Court are nearly always heard by the District Court.

Apprehended Violence Orders (AVOs)

AVOs are a special category. An application for an AVO is a civil proceeding but is generally heard along with criminal cases. A breach of an AVO is a criminal offence.

Why would a court want your records?

Courts base their decisions on evidence brought to them by the people (or organisations) involved in the case (called the “parties” to the case). Each party gathers material and information to present as evidence to the court to prove their case. Much of this material comes from people or organisations who are not parties in the case. These people or organisations are called ‘third parties’.

If you or your service gets a demand or request for records about a client, you or your service would almost always be a third party.

The laws and rules about requests for material from third parties vary according to whether the case is criminal, civil or family law.

Types of requests

There are several types of requests for documents or information. They are listed below.

  • Subpoenas (or in some cases called a summons)
  • Letters from lawyers
  • Search warrants
  • Notices to produce
  • Formal requests from authorities
  • Requests for statements or affidavits
  • Requests for expert reports
  • Informal requests

For more information about the different types of information requests and some ideas on how to respond see Requests for records.

What is a subpoena?

The most common method for collecting material from third parties (such as counsellors and health services) is to issue a subpoena.

A subpoena is a court order requiring a person to come to court to give evidence and/or to hand over (‘produce’) material to the court so that the parties can look at it (‘inspection’ or ‘access’).

A subpoena is ‘issued’ by a court, and then delivered to the person (or organisation) named in it, who is at that point ‘served’ with the subpoena. There are many technical rules about serving subpoenas.

This Guide will help you respond to subpoenas in different types of cases and courts.

TIP / Check with the issuing court if you are not sure of the rules of service for your subpoena.