Citation: R v Bobak (No 3 – bench warrant) [2025] NSWSC 1057
Court: Supreme Court of New South Wales
Date: 11 September 2025
Judge(s): Dhanji J
Background
The Crown applied during a murder trial for the issue of a bench warrant to arrest a witness who had repeatedly refused to attend court despite being served with a subpoena. The trial of the accused had commenced on 1 September 2025 and was in its second week when the application was made.
The witness had been personally served with the subpoena on 1 September 2025, following months of unsuccessful attempts by police to effect service. Prior to service, the witness had made her unwillingness to attend clear in telephone conversations with the officer in charge of the investigation. After service, the witness was contacted by text message on multiple occasions advising her of the specific dates she was required to attend. She responded with an expletive-laden refusal.
The Crown submitted that the witness was a material witness in the murder trial, that she had been validly served, and that she had no just cause or reasonable excuse for her failure to attend.
Legal Issues
- Whether the witness had been properly served with a valid subpoena, given that personal service occurred on the day specified in the subpoena rather than five days before
- Whether the court had power to issue a bench warrant for the arrest of the witness under s 194(1) of the Evidence Act 1995 (NSW)
- Whether the preconditions for exercising that power were satisfied
Decision
Dhanji J first addressed the procedural framework governing subpoenas in criminal proceedings prosecuted on indictment. The Supreme Court Rules 1970 (NSW), Pt 75, r 3, read with Sch 3 of the Supreme Court Act 1970 (NSW), applies the UCPR Pt 33 rules to such proceedings but with certain modifications. Those modifications disapply the usual requirements for personal service, for service five days before the attendance date, and for the subpoena to state the last date for service.
The Court accepted that the subpoena had been validly served. Although personal service occurred on the day specified in the subpoena (1 September 2025), the witness had subsequently been given reasonable notice of the actual dates on which her attendance was required. The accompanying letter from the ODPP had explained that the witness would be contacted with the actual date she needed to attend. Text messages on 4, 5, and 8 September provided that notice.
Dhanji J was satisfied that the witness understood both the terms of the subpoena and the consequences of non-compliance. Her text message response on 8 September constituted, in the Court's view, a clear indication of her unwillingness to comply. The Court found that she had failed to attend without just cause or reasonable excuse.
Noting the seriousness of a murder trial and the importance of ensuring trials proceed on all relevant and available evidence, his Honour found the preconditions under s 194(1)(b) of the Evidence Act were met. He concluded that there was no alternative but to issue a bench warrant.
Orders Made
- A bench warrant was issued for the arrest of the witness.
- If arrested prior to 4pm on Friday, 12 September 2025, she was to be brought directly before Dhanji J.
- If arrested after that time, she was to be brought before a court as soon as practicable, in accordance with the bail obligations under s 312 of the Criminal Procedure Act 1986 (NSW).
Key Takeaways
- In criminal proceedings on indictment in the Supreme Court, the usual UCPR requirements for personal service of a subpoena five days before the attendance date do not apply, by operation of Supreme Court Rules 1970 (NSW), Pt 75, r 3.
- Under s 194(1)(b) of the Evidence Act 1995 (NSW), a bench warrant may issue where a witness has been served with a subpoena, has failed to comply without just cause or reasonable excuse, and possesses relevant evidence.
- Where the date specified in a subpoena has passed, subsequent written notice of the actual attendance date (here, by text message from the officer in charge) can satisfy the requirement that the witness had a reasonable opportunity to comply.
- A witness's explicit, profane refusal to attend, communicated in response to a reminder of the obligation and consequences, was treated as a clear indication of unwillingness to comply with the court's process.
- Section 312 of the Criminal Procedure Act 1986 (NSW) requires that a person arrested on a bench warrant be brought before the Local Court at the earliest reasonable opportunity for bail consideration if they cannot be brought before the issuing court promptly.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 312
- Evidence Act 1995 (NSW), s 194
- Supreme Court Act 1970 (NSW), Sch 3
- Supreme Court Rules 1970 (NSW), Pt 75
- Uniform Civil Procedure Rules 2005 (NSW), Pt 33
Cases: No cases were cited in the judgment.