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Supreme Court 14 July 2026

New South Wales Police Force v L Davis

[2026] NSWSC 850

Public order & justice offences

Citation: New South Wales Police Force v L Davis [2026] NSWSC 850
Court: Supreme Court of New South Wales
Date: 14 July 2026
Judge(s): Campbell J

Background

The applicant was a witness subpoenaed to give evidence in a judge-alone murder trial being conducted in the Supreme Court. She had made repeated and deliberate attempts to evade service of the subpoena, and Campbell J had issued a bench warrant for her arrest on 3 July 2026 under s 194 of the Evidence Act 1995 (NSW). The reasons for that decision were set out in a separate published judgment, R v Lardner (No 2) [2026] NSWSC 786.

The applicant was arrested the evening before this hearing and refused police bail. She was brought before the Local Court at Port Macquarie, where Judge Viney refused bail under s 312 of the Criminal Procedure Act 1986 (NSW) and committed her to a place of security. Judge Viney also ordered that the applicant be brought before Campbell J as the presiding trial judge.

The applicant had a prior connection to the underlying proceedings: she had been charged in relation to post-offending conduct arising from the same events and had pleaded guilty to a "hinder" charge, receiving an intensive correction order. The court heard that she appeared to have been present when the deceased was fatally stabbed and was likely an eyewitness.

  • Whether bail should be granted to a witness arrested under a bench warrant for non-compliance with a subpoena, applying the framework in the Bail Act 2013 (NSW)
  • What analogous offence applied for the purpose of characterising the applicant's situation under the Bail Act, specifically whether a "show cause" obligation arose under s 16A
  • Whether the risk of the applicant failing to appear if released on bail was an unacceptable risk under the unacceptable risk test

Decision

Issue 1: Applicable bail framework

Section 312(2A) of the Criminal Procedure Act operates so that the Bail Act 2013 applies to a person in the applicant's position as if she were accused of an offence. The Crown Prosecutor drew an analogy with the offence of failure to appear under s 79 of the Bail Act, which carries a maximum penalty of three years' imprisonment. Campbell J accepted this analogy and the applicant's solicitor did not contest it.

Issue 2: Show-cause or unacceptable risk?

Because the analogous offence is not a "show-cause" offence under s 16A of the Bail Act, the application fell to be determined under the unacceptable risk test. The only bail concern identified was the risk that the applicant would not appear as required if released.

Issue 3: Unacceptable risk of non-appearance

Campbell J found the risk of non-appearance unacceptable. The applicant had made sustained efforts to avoid subpoena service, had failed to appear at the February 2025 committal hearing, and had breached a bail acknowledgment in July 2025 in the same proceedings. The proposed bail addresses raised further concern: the primary address was one from which the applicant had previously fled to avoid police, and the court had been unable to confirm the suitability of the proposed supervisor at that address.

While the applicant's solicitor pointed to mitigating factors, including that evidence was proposed to be called the following morning and that the applicant was now willing to testify, the judge was satisfied the Crown had discharged the onus of proving, on the balance of probabilities, that even overnight non-appearance was an unacceptable risk. The court also noted that contempt proceedings arising from the subpoena non-compliance could not be dealt with until after the trial concluded, meaning bail obligations might need to continue beyond a single day.

Orders Made

  • Bail refused
  • Leave granted for a further bail application at the completion of the applicant's evidence, on the assumption that she honours her undertaking to give sworn testimony in the proceedings

Key Takeaways

  • Under s 312(2A) of the Criminal Procedure Act 1986 (NSW), the Bail Act 2013 applies to a witness arrested under a bench warrant as if that person were accused of an offence, with the relevant proceedings treated as proceedings for that offence.
  • The Crown Prosecutor's analogy between a subpoena-non-compliant witness and a person who has failed to appear under s 79 of the Bail Act was accepted as the appropriate framework for determining the bail application.
  • A history of deliberate subpoena evasion and repeated failures to appear in the same proceedings can, taken together, establish an unacceptable risk of non-appearance sufficient to defeat a bail application even where release is sought for a short period.
  • Refusing bail did not foreclose future review: the Supreme Court preserved the right to make a further bail application once the applicant completed her evidence, reflecting the court's recognition that the risk profile could change materially.
  • Non-compliance with a subpoena to attend trial is, at minimum, a contempt in the face of the court; where a trial is ongoing, any contempt charge must await the trial's completion before it can be properly dealt with.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 312
- Bail Act 2013 (NSW), s 16A

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