Subpoenas in criminal cases: getting the documents you need.

Compelling evidence to court.

A subpoena is a court order requiring a person to produce documents, to attend and give evidence, or both. In a criminal case, the defence often needs material held by third parties, medical records, phone records, records of a complainant or a witness, agency files, that the prosecution does not hold or has not produced. A subpoena is how that material is brought before the court so it can be used.

This is general information, not advice on your matter. Subpoenas have rules about when they can be issued and what they can seek, and a subpoena that oversteps can be challenged and set aside. Used properly, a subpoena is one of the most useful tools the defence has for getting at evidence that would otherwise stay hidden.

What are the two kinds of subpoena?

There is a subpoena to produce documents and a subpoena to give evidence. A subpoena to produce requires the recipient to bring specified documents or things to the court by a certain date, so they can be inspected and, if relevant, used. A subpoena to give evidence requires a person to attend court and testify. A single subpoena can require both production and attendance.

The subpoena to produce is the workhorse in most cases, because so much useful material exists as documents held by third parties. It lets the defence obtain records that prove or disprove a fact, undermine a witness, or fill a gap in the prosecution case. The subpoena to give evidence is used to compel a reluctant but relevant witness to attend, so their evidence can be heard.

What test does a subpoena have to meet?

A subpoena is not a fishing expedition. To be valid, it has to have a legitimate forensic purpose, meaning the material sought must be reasonably likely to help the case in a real way, not just be something the party would like to look at in the hope of finding something. The party issuing the subpoena has to be able to explain how the documents relate to an issue in the case.

This test exists to protect third parties and witnesses from being burdened by broad or speculative demands, and to stop subpoenas being used to trawl through private records without a proper basis. A subpoena that is too wide, or that cannot be tied to a real issue, can be set aside as an abuse of process. Framing a subpoena tightly, aimed at identified documents relevant to identified issues, is what makes it stand up.

Can a subpoena be objected to?

Yes. The person served, or another party, can object to a subpoena and ask the court to set it aside or narrow it. Common grounds are that it lacks a legitimate forensic purpose, that it is too wide or oppressive, that it seeks privileged or confidential material, or that it is really an attempt to obtain discovery that criminal procedure does not allow. The court then rules on whether the subpoena stands, in whole or in part.

Confidentiality and privilege are frequent battlegrounds, especially over sensitive records such as medical or counselling files. There are special protections for some categories of material, and the court balances the defence's need for the material against the interests the protection serves. Getting relevant material admitted can involve argument about these competing interests, which is part of why subpoenas over sensitive records are often contested.

How do you get access to what is produced?

Producing documents to the court is not the same as handing them to the party who issued the subpoena. The documents come to the court, and access to them is then controlled by the court. A party who wants to inspect the produced documents applies for access, and the court decides whether, and on what terms, access is granted, taking account of any objection by the producer or another party.

This two-step process, production then access, is a protection. It means sensitive documents are not simply handed over on demand; the court supervises who sees them and how they are used. For the defence, obtaining access to produced material is a distinct step that may itself be contested, and it is where the value of a subpoena is finally realised, when the relevant documents can actually be read and used.

How should the defence use subpoenas?

Use them early and precisely. Identify the material that could help, work out who holds it, and frame the subpoena tightly around documents relevant to a real issue, so it survives objection and produces something useful. A well-aimed subpoena can transform a case by producing the record that contradicts a witness or supports the defence account, but a scattergun one wastes time and invites challenge.

Timing matters, because subpoenaed material has to be produced, access obtained, and the documents considered before the hearing. Leaving subpoenas to the last minute risks the material arriving too late to use, or an adjournment. As with so much in criminal litigation, the value of a subpoena is realised through early, careful work, planning what is needed and pursuing it in good time rather than at the door of the court.

Primary sources: subpoenas in criminal proceedings are governed by the Criminal Procedure Act 1986 (NSW) and the applicable court rules, with the requirement of a legitimate forensic purpose developed in the case law and protections for sensitive material such as sexual assault communications and health records in the Evidence Act 1995 (NSW) and related legislation. NSW decisions on subpoenas are searchable on JADE.

Common questions

What is a subpoena in a criminal case?

A subpoena is a court order requiring a person to produce documents, to attend and give evidence, or both. In a criminal case the defence often uses a subpoena to obtain material held by third parties, such as medical, phone or agency records, that the prosecution does not hold, so it can be brought before the court and used.

What is the difference between a subpoena to produce and to give evidence?

A subpoena to produce requires the recipient to bring specified documents or things to the court by a certain date for inspection and possible use. A subpoena to give evidence requires a person to attend court and testify. A single subpoena can require both. The subpoena to produce is the workhorse, because so much useful material exists as documents.

What is a legitimate forensic purpose?

It is the test a subpoena must meet: the material sought must be reasonably likely to help the case in a real way, tied to an issue in the proceedings, not just something the party would like to look at in the hope of finding something. A subpoena is not a fishing expedition, and one that is too wide or cannot be tied to a real issue can be set aside.

Can a subpoena be challenged?

Yes. The person served or another party can object and ask the court to set the subpoena aside or narrow it, on grounds such as lack of a legitimate forensic purpose, being too wide or oppressive, or seeking privileged or confidential material. Sensitive records such as medical and counselling files have special protections, and the court balances the competing interests.

How do you get the documents produced under a subpoena?

Documents produced under a subpoena come to the court, not directly to the party who issued it. Access is then controlled by the court: a party applies to inspect the documents, and the court decides whether and on what terms access is granted, taking account of any objection. Production and access are two separate steps, and access can itself be contested.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 30 August 2026. It is general information and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. The law changes and procedure varies from case to case. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More commentary by Aaron Kernaghan.

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