How do witness summons (subpoenas) work in criminal cases?

In a criminal case, there may be a point where you are considering issuing a witness summons. This used to be called a subpoena. A summons is an order of the court. It can be an order to compel an actual witness to come to court and give evidence in support of the defence case. Or, more commonly, to compel someone to produce documentary evidence to the court which has not been disclosed. A summons to produce evidence is commonly issued in criminal cases where there are concerns that full disclosure has not been provided by the prosecution. Or, where grounds to refuse to disclose evidence, such as public interest immunity or relevance, do not actually exist.

Summons for a witness to attend court

The prosecution must call all relevant witnesses in any given case. This means most witnesses will be summonsed by the prosecution, and the defence usually don’t have to issue summons for witnesses to attend court. Sometimes, there may be witnesses who the prosecution refuse to call but the defence require. If they aren’t willing to attend, a witness summons may need to be issued. To issue a summons for a witness to attend court, an application must be filed with the relevant court. The court will then issue a sealed service copy of the summons, which you must serve on the witness. First you need to locate them, and then you need to serve them with the summons, and also conduct money and an information sheet that is prescribed. You then need to sign the ‘service copy’ of the summons and keep a copy of it in case the witness does not attend court.

If the witness doesn’t attend court when required, the court may issue an arrest warrant to bring them before the court. There are wide powers for dealing with witnesses who don’t attend, including punishment for contempt of court, and holding them in custody until trial and only releasing them after they have given evidence.

Forcing a witness to attend court under a summons is a difficult forensic decision, and you should receive expert advice about it. Don’t hesitate to contact us today if you require such advice.

Summons for a witness to produce documents to the court

The prosecution have a duty to disclose all relevant evidence including anything that may assist the defence case. Since the Mallard case, the DPP in WA has been on notice of the importance to disclose every piece of evidence, even if the prosecution don’t think it is relevant, given the risk of unfair trial in cases where non-disclosure of relevant evidence occurs. However, there may be times when the police simply haven’t provided the DPP with full disclosure, or there is evidence which exists which for one reason or another the prosecution are unaware of. There may be other cases where exceptions to the requirement to disclose are claimed, such as public interest immunity for example where informants are involved.

Either way, the defence aren’t limited by what the prosecution provide them and may issue summons to anyone who may be able to produce relevant documents to the court. This can include, for example, hospitals, the WA police, inter-state police, and telecommunications companies. The process to issue a summons to produce documents is the same as that for summonsing a witness to court. However, the summons needs to be served a reasonable time before the actual trial date to allow the witness to dig up the documents and comply with it. Further, the summons needs to state in reasonable detail the document(s) that the witness needs to be produced to the court. So you can’t just request all documents in the person (or organization’s) possession. You have to be fairly specific about it.

Once served, the witness then has to provide the documents to the court. Often with large organizations such as WAPOL, there is a specialist legal team who deals with summons to produce documents. The lawyer from that team who is allocated to your summons will most likely contact you and outline any issues they have with complying with the summons. People who receive a summons to produce documents can claim an exemption from producing the document if the evidence is inadmissible for one reason or another.


In an appropriate case, issuing a witness summons can be beneficial. It can sometimes get crucial witnesses to court, or obtain documents which weren’t disclosed that assist the defence case. Don’t hesitate to contact James Jackson Criminal Defence today if you require advice about issuing a summons in your case.

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