Citation: [2026] NSWSC 365
Court: Supreme Court of New South Wales
Date: 10 April 2026
Judge(s): Hamill J
Background
Hamill J is presiding over a murder trial involving three accused persons in Newcastle. The trial has been proceeding before a jury since late March or early April 2026. A witness, referred to as "Witness F," was subpoenaed to give evidence but failed to attend court.
Evidence tendered by way of affidavit from a detective sergeant established that Witness F had made it apparent to investigators on multiple occasions that he did not intend to attend court and did not want to give evidence, expressing fear about doing so. An arrest warrant was issued after the witness failed to answer the subpoena. The warrant initially lay in the registry to give the witness an opportunity to attend voluntarily, but he did not do so. The warrant was executed and Witness F was arrested in Wollongong.
Following his arrest, Witness F applied for release on bail so that he could attend court voluntarily on the following Monday.
Legal Issues
- Whether Witness F, arrested on a warrant for failing to attend court on subpoena, should be released on bail (under either the Evidence Act 1995 (NSW) or the Bail Act 2013 (NSW)) to attend court voluntarily.
- Whether the court could have confidence that the witness would attend court if released.
Decision
Hamill J refused bail. The court found that the overwhelming body of evidence demonstrated Witness F would not attend court if released. Although his solicitor submitted that the witness's position was "equivocal" and that he had at times indicated willingness to attend (including in a conversation with a Crown Prosecutor), the weight of evidence pointed the other way.
The court noted that even upon his arrest, Witness F told police he was "not going to be a witness," described himself as "not a dog," and stated he was "too scared" to attend a murder trial. His criminal history included prior breaches of conditional liberty, failures to answer bail, and instances where he had to be arrested in order to be sentenced.
The bail proposal itself gave the court little comfort. Witness F was found in Wollongong despite apparently being a Newcastle area resident. He proposed staying at Morisset with his mother but could not provide her address and said he had only visited there three times in his life. The court acknowledged that Witness F may have been earnest in telling the court he would attend, but expressed the view that this resolve would likely not survive his release.
The trial witness list had been reshuffled to accommodate Witness F giving evidence on the following Monday, and counsel for the accused indicated cross-examination could be completed in one day. Nonetheless, the court concluded it had "absolutely no faith" the witness would attend voluntarily.
Orders Made
- The application for release on bail was refused.
- Witness F remained in custody to be brought to court to give evidence.
Key Takeaways
- The Supreme Court held that a witness's repeated statements to investigators and police, both before and upon arrest, that he would not attend a trial constituted the most significant evidence when assessing the risk of non-attendance on bail.
- An inconsistent history of stated intentions, where a witness alternated between expressing willingness and unwillingness to attend, did not establish sufficient reliability to support release, particularly where the most recent statements were against attendance.
- A bail proposal lacking specificity (such as an inability to provide an address for the proposed residence and minimal connection to the proposed location) weighed against the granting of release.
- In refusing bail, the Court treated the witness's criminal history of breaching conditional liberty orders and failing to answer bail as directly relevant to whether he could be trusted to attend if released.
- The power to issue an arrest warrant for a witness who fails to answer a subpoena, and to allow the warrant to lie in the registry before execution, was confirmed as a procedural step available to the Court before resorting to immediate arrest, giving the witness an opportunity to attend voluntarily.
Legislation and Cases Referenced
Legislation:
- Bail Act 2013 (NSW)
- Evidence Act 1995 (NSW)
Cases:
- No cases were cited in the judgment.