Important: This statement is important. Please read the statement and the attached document carefully. If you are in any doubt about this statement or the attached document, you should get legal advice immediately.
Attached to this statement is a subpoena issued in a criminal proceeding by a New Zealand court, namely the [relevant court]. A subpoena is a summons (or order, notice, or other process) to a witness to give evidence or produce documents. The subpoena attached to this statement requires you to [specify whether witness is required to attend the relevant court or some other place to give evidence, give evidence and produce documents or things, or only produce documents or things].
The subpoena may be served in Australia under section 156 of the Evidence Act 2006 of New Zealand.
This statement sets out your rights and obligations relating to the subpoena.
At the time you are served with this subpoena, or at some other reasonable time before the hearing, you are entitled to be paid allowances and travelling expenses, or given vouchers in respect of those allowances and expenses, that cover your reasonable expenses in complying with this subpoena.
You are not required to comply with this subpoena unless those allowances and travelling expenses or vouchers are tendered to you.
You are also entitled to be paid for your reasonable expenses in complying with the subpoena in addition to any payment or vouchers tendered to you. You may apply to the New Zealand court for an order specifying that amount.
You may apply to the New Zealand court to have the subpoena set aside. If you want to have the subpoena set aside, you should get legal advice as soon as possible.
An application to set the subpoena aside can be made and determined without your having to go to New Zealand. You are entitled to have Australian solicitors act for you.
The New Zealand court may determine the application without a hearing if neither you nor the party who requested the issue of the subpoena requires a hearing. The court may hold a hearing by audio link or audiovisual link if the court thinks fit. If a party applies to the court for a direction to hear the application by audio link or audiovisual link, the court is required to hear it by audio link or audiovisual link.
“Setting subpoena aside” for details of the grounds on which a subpoena may be set aside and the procedure that must be followed.
If the subpoena is not set aside, you must comply with it if—
when you were served with the subpoena, or at some reasonable time before the time specified for you to comply, you have been paid or tendered allowances and travelling expenses, or offered vouchers in respect of those allowances and expenses, that are sufficient to cover reasonable expenses incurred in complying with this subpoena; and
a copy of the order of the Judge of the New Zealand court granting leave to serve the subpoena was served on you with the subpoena; and
you were served with the subpoena not later than the date specified by the Judge of the New Zealand court who granted leave to serve the subpoena; and
any other conditions relating to the service of the subpoena have been complied with; and
you have attained the age of 18 years.
If the subpoena only requires you to produce documents or things, you may comply with the subpoena by producing the documents or things at any registry of an Australian court that is authorised by the law of the Commonwealth of Australia to receive them, not later than 10 days before the date specified in the subpoena for producing them in the New Zealand court. If you produce the documents or things at a registry of an Australian court, you will be required to produce the subpoena and to pay the cost of sending the documents or things to the New Zealand court. You are entitled to have the costs of producing the documents or things, and of sending them to the New Zealand court, paid or tendered to you before you are required to comply with the subpoena.
Failure to comply with subpoena
Failure to comply with the subpoena constitutes contempt of the Federal Court of Australia and is punishable unless you establish that the failure to comply should be excused.
Setting subpoena aside
You may apply to the New Zealand court to have this subpoena set aside under section 160 of the Evidence Act 2006 of New Zealand. Section 160 provides that the New Zealand court must set the subpoena aside if—
the subpoena requires the witness to attend at a sitting of a court and the court is satisfied that—
the witness does not have, and cannot by the exercise of reasonable diligence within the time required for compliance obtain, the necessary travel documents; or
the witness is liable to be detained in New Zealand for the purpose of serving a sentence; or
the witness is liable to prosecution for an offence, or is being prosecuted for an offence, in New Zealand; or
the witness is liable to the imposition of a civil penalty in civil proceedings in New Zealand, not being proceedings for a pecuniary penalty under the Commerce Act 1986; or
the witness is subject to a restriction on his or her movements, imposed by law or by order of a court, that would prevent the witness complying with the subpoena.
Section 160 further provides that the New Zealand court may set a subpoena aside if it is satisfied that—
the evidence of the witness could be obtained satisfactorily without significantly greater expense by other means; or
compliance with the subpoena would cause hardship or serious inconvenience to the witness; or
in the case of a subpoena that requires a witness to produce documents or things, whether or not it also requires the witness to give oral evidence,—
the documents or things should not be taken out of Australia; and
satisfactory evidence of the contents of the documents or evidence of the things can be given by other means.
An application to set the subpoena aside must be filed in the registry of the New Zealand court in which leave to serve the subpoena was given, together with any affidavit setting out the facts on which you rely.
The application and the affidavit may be sent by fax or email. The fax number and email address of the registry of the court are [fax number and email address].
The application must contain an address for service in New Zealand or Australia and may also state a fax number or email address in New Zealand or Australia to which documents relating to the application may be sent.
The Registrar of the New Zealand court will arrange for service of the application and any affidavit.
The New Zealand court can decide the application without a hearing if neither you (in the application) nor the party who requested the issue of the subpoena (in a document filed in response to the application) states that a hearing is required. If there is to be a hearing, the hearing may, if the court thinks fit, be by audio link or audiovisual link. You may, however, either in your application to set the subpoena aside or within a reasonable time after filing the application, request that the court direct that the hearing be by audio link or audiovisual link. If you make such a request, the court will direct that the hearing be by audio link or audiovisual link.