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Supreme Court 13 July 2026

R v Lardner (No 5)

[2026] NSWSC 816

HomicidePublic order & justice offences
CRIMINAL PROCEDURE SUBPOENA APPLICATION FOR BENCH WARRANT

Citation: R v Lardner (No 5) [2026] NSWSC 816
Court: Supreme Court of New South Wales
Date: 13 July 2026
Judge(s): Campbell J

Background

The decision arises from an ongoing murder trial in which the accused faces a charge of killing the deceased. The Crown required the attendance of a witness, referred to here as the witness, who had been issued a subpoena to give evidence but had not been personally served despite repeated police efforts.

This was the second application in the same proceedings for a bench warrant under s 194 of the Evidence Act 1995 (NSW) where personal service of a subpoena appeared to have been deliberately evaded. Campbell J had already set out the governing principles in R v Lardner (No 2) [2026] NSWSC 786.

The judgment records the reasons for granting the Crown's warrant application on 10 July 2026, including a detailed account of the steps taken by police to locate and serve the witness.

  • Whether the witness had actual knowledge of the subpoena and its requirements, despite not having been personally served
  • 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
  • Whether, all three conditions being satisfied, a bench warrant should issue under s 194 of the Evidence Act 1995 (NSW)

Decision

Issue 1: Actual knowledge of the subpoena

Campbell J summarised the applicable test from R v Lardner (No 2): where personal service has not occurred, a warrant will only issue if the court is satisfied that the witness has actual knowledge of the subpoena and its requirements, that non-appearance is without just cause or reasonable excuse, and that the witness would probably be able to give relevant evidence. All three conditions must be met.

Police made extensive attempts to serve the witness over several weeks, including attending a residential address, coordinating with a Community Corrections officer (the witness being on parole), and distributing the subpoena to police vehicles in the relevant area. After those attempts failed, on 29 June 2026 the officer in charge sent screenshots of the subpoena to a phone number confirmed by the Community Corrections officer as the witness's current contact number. The witness had previously responded to his Community Corrections obligations through that number. Campbell J was satisfied the witness actually received the message and its attachments when sent, and that he had actual knowledge of the subpoena and its requirements from at least 29 June 2026.

Issue 2: Just cause or reasonable excuse

Nothing in the evidence before the court suggested any just cause or reasonable excuse for the witness's non-attendance. Campbell J was satisfied this condition was met.

Issue 3: Ability to give relevant evidence

Campbell J described the threshold for this condition as "undemanding." The witness had given a police statement in April 2023 placing him inside the relevant premises at the time of the fatal incident, and CCTV footage appeared to corroborate his subsequent presence on the street. Much of the most probative content in his statement was hearsay, but those representations had the potential to be admitted and were relevant both to the stabbing itself and to the dispute between the accused and the deceased. The court was satisfied the witness would probably be able to give relevant evidence.

Orders Made

  • The court found the witness had been served with a subpoena requiring attendance at the Supreme Court of NSW in the trial of R v Lardner but had failed to appear as required or on any subsequent date.
  • The court found his non-appearance was without just cause or reasonable excuse.
  • The court found the witness would probably be able to give relevant evidence in the proceedings.
  • A warrant was directed to issue for the arrest of the witness.

Key Takeaways

  • Under s 194 of the Evidence Act 1995 (NSW), a bench warrant may issue even where a subpoena has not been personally served, provided three conditions are all satisfied: the witness has actual knowledge of the subpoena and its requirements; the non-appearance is without just cause or reasonable excuse; and the witness would probably be able to give relevant evidence.
  • Sending subpoena screenshots to a phone number confirmed by a Community Corrections officer as the witness's current contact number was sufficient to establish actual knowledge of the subpoena, where the witness had used that number to comply with his parole obligations.
  • A court will not issue a bench warrant in the absence of evidence that all reasonable attempts were made to effect personal service. The judgment treats strenuous efforts at personal service as a prerequisite, not merely a relevant factor.
  • The threshold for establishing that a witness would "probably be able to give relevant evidence" is characterised as undemanding. Potential hearsay evidence can contribute to satisfying this condition where there is a prospect it may be admitted and it bears on contested issues in the trial.
  • This was the second bench warrant application in the same proceedings arising from apparent evasion of personal service, indicating that Campbell J's principles from R v Lardner (No 2) continue to govern this category of application in that trial.

Legislation and Cases Referenced

Legislation
- Evidence Act 1995 (NSW), s 194

Cases
- R v Lardner (No 2) [2026] NSWSC 786