Citation: R v Lardner (No 2) [2026] NSWSC 786
Court: Supreme Court of New South Wales
Date: 7 July 2026
Judge: Campbell J
Background
The accused stands trial in the Supreme Court for the murder of another man following an alleged fatal stabbing at premises in South Kempsey. The central issue at trial is whether the Crown can negative self-defence beyond reasonable doubt, including the contested question of which party introduced the knife during the altercation.
The Crown sought to call a witness who was apparently present during the fatal incident and who allegedly assisted the accused into a vehicle immediately afterwards. That witness had consistently refused to cooperate with police, had failed to appear in committal proceedings on two prior occasions (including after a warrant was executed and she was brought to court), and had evaded multiple attempts at personal service of the subpoena for this trial.
The Crown applied for a bench warrant under s 194 of the Evidence Act 1995 (NSW) to compel the witness's attendance. Campbell J delivered reasons for issuing that warrant on 3 July 2026.
Legal Issues
- Whether the witness had been "served" with the subpoena for the purposes of s 194 of the Evidence Act 1995 (NSW), given that personal service had not been effected
- Whether the witness had "actual knowledge of the subpoena and of its requirements" within the meaning of UCPR r 33.6(3), such that the subpoena was binding on her
- Whether the witness's non-appearance was without just cause or reasonable excuse
- Whether the witness would probably be able to give relevant evidence in the proceedings
Decision
Issue 1: The service framework for Crown-issued subpoenas in criminal proceedings
Campbell J observed that the rules governing service of subpoenas in criminal trials before the Supreme Court are "surprisingly labyrinthine." By operation of SCR Pt 75 r 3, the obligation under UCPR r 33.5 to effect personal service does not apply to subpoenas issued by the Crown. The practical consequence is that something less than personal service will suffice for a Crown subpoena in criminal proceedings.
UCPR r 33.6(3) continues to apply, however, and provides that an addressee must comply with a subpoena even without personal service if the addressee has actual knowledge of the subpoena and its requirements. The court held this provision governs the position in criminal proceedings, with the reference to "last date for service" being immaterial given no such date is prescribed for criminal proceedings.
Issue 2: Actual knowledge of the subpoena
Campbell J accepted the evidence of Detective Senior Constable Smith, which included hearsay admitted under s 75 of the Evidence Act on the basis that a voir dire is an interlocutory proceeding. The evidence established extensive and sustained police efforts to bring the subpoena to the witness's attention, including contact with her family and associates.
The court was satisfied that the witness had actual knowledge of the subpoena and its requirements since at least 2 June 2026. Campbell J also noted that the trial's commencement date had become a "notorious fact" within the close-knit local community, and that the public gallery had been full on each sitting day, reinforcing the inference that the witness knew of the proceedings and what was required of her.
Issue 3: No just cause or reasonable excuse; relevant evidence probable
The court found no evidence capable of establishing just cause or reasonable excuse for the witness's non-appearance. The totality of the evidence established, on the balance of probabilities, that she was "consciously and persistently evading personal service." Her history of non-compliance with court orders in the same matter reinforced that finding.
On the question of relevant evidence, the court noted the test is not particularly demanding. Agreed facts tendered in related sentence proceedings indicated the witness was present during the fatal altercation and assisted the accused into a vehicle immediately afterwards. The court was satisfied on the balance of probabilities that she could probably give relevant evidence about the fatal incident, which was squarely in issue at trial.
Orders Made
- A warrant for the arrest of the witness was issued under s 194 of the Evidence Act 1995 (NSW) for the purpose of bringing her before the court to give evidence.
Key Takeaways
- Under UCPR r 33.6(3), a subpoena binds an addressee who has actual knowledge of it and its requirements, even without personal service. In criminal proceedings before the Supreme Court, the Crown is not required to effect personal service of a subpoena.
- Actual knowledge can be established through circumstantial and hearsay evidence on a voir dire (hearsay being admissible in interlocutory proceedings under s 75 of the Evidence Act 1995 (NSW)), with the standard being the balance of probabilities.
- Where a witness is found to have actual knowledge of a subpoena and to have consciously evaded service, there is no just cause or reasonable excuse for non-appearance, and a warrant under s 194 may issue.
- The threshold for satisfying the "probably able to give relevant evidence" precondition under s 194(1)(b) is not a demanding one. Agreed facts from related proceedings and other objective evidence can be sufficient.
- Section 194 of the Evidence Act confers a residual discretion to refuse a warrant even where all preconditions are met. Campbell J found no basis to exercise that discretion against issue in this case, given the gravity of the proceedings and the interests of justice.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW), s 75, s 142, s 194(1)
- Crimes Act 1900 (NSW), s 315(1)(c)
- Supreme Court Act 1970 (NSW), s 17, Third Schedule
- Supreme Court Rules 1970 (NSW), Pt 75 r 3
- Uniform Civil Procedure Rules 2005 (NSW), Pt 33 (rr 33.5, 33.6(3))
Cases cited: No cases cited in the judgment.