Citation: New South Wales Police Force v C Davis [2026] NSWSC 851
Court: Supreme Court of New South Wales
Date: 14 July 2026
Judge(s): Campbell J
Background
A witness in an ongoing murder trial failed to appear in answer to a subpoena. Campbell J had previously found, on the balance of probabilities, that the witness was aware of the subpoena and its requirements, and issued a bench warrant for his arrest (see R v Lardner (No 5) [2026] NSWSC 816).
Police were unable to execute the warrant through their own efforts, but the witness ultimately attended Kempsey Police Station voluntarily following community engagement. He was taken before the Local Court under s 312 of the Criminal Procedure Act 1986 (NSW), where bail was refused, and he was then brought before the Supreme Court as the court that issued the warrant.
The witness was already subject to a two-year Intensive Correction Order (ICO) for separate offending. Under s 312(2A) of the Criminal Procedure Act, the Bail Act 2013 (NSW) applied to his situation as if he were accused of an offence and the Supreme Court proceedings were proceedings for that offence.
Legal Issues
- Whether conditional bail should be granted to a witness arrested on a bench warrant for non-compliance with a subpoena to give evidence in a criminal trial
- Whether the risk of non-appearance was an unacceptable bail concern, given the witness's history of failing to appear when required
Decision
Issue 1: Bail concern regarding non-appearance
The primary bail concern was the risk that the witness would not appear when required. The Crown drew an analogy between subpoena non-compliance and the offence of failure to appear under s 79 of the Bail Act 2013, which carries a maximum of three years imprisonment. The witness had an extensive record of failing to appear in other proceedings, requiring the issue of bench warrants on multiple prior occasions.
The witness also held potential significance to the trial. His own statement to police indicated he lived adjacent to the premises where the fatal stabbing occurred and was present in its immediate aftermath. His failure to appear risked causing adjournment or delay in a judge-alone trial.
Issue 2: Suitability of proposed bail residence
Further concerns arose around the proposed bail residence. The witness's partner had, in all probability, sheltered him from police while repeatedly denying his presence, and declined to allow police to inspect the premises. These circumstances raised doubts about the sincerity of her account and the suitability of her address as a bail address.
Issue 3: Whether the risk was unacceptable
Despite these concerns, Campbell J was satisfied the risk of non-appearance was not unacceptable. The witness had cooperated with investigators in the past, his legal representative explained he was functionally illiterate and may not have appreciated the significance of the subpoena, and he had ultimately handed himself in voluntarily. Conditional bail was granted, with the question of whether charges would follow for the subpoena non-compliance left to be considered after the witness gave evidence.
His Honour also noted that any non-compliance with bail conditions would carry additional consequences: as the witness remained on an ICO, a breach could trigger revocation of that order by the parole authority, resulting in his committal to custody to serve the balance of the underlying sentence of imprisonment.
Orders Made
• Conditional bail granted
Key Takeaways
- Under s 312(2A) of the Criminal Procedure Act 1986 (NSW), the Bail Act 2013 applies to a person arrested on a bench warrant for subpoena non-compliance as if that person were accused of an offence, with the issuing court treated as the proceedings court.
- A witness's history of failing to appear in prior proceedings, combined with the potential significance of their evidence to an ongoing trial, constitutes a substantial bail concern weighing against release.
- Voluntary surrender, prior cooperation with investigators, and functional illiteracy (affecting appreciation of subpoena obligations) may reduce the assessed risk of non-appearance to an acceptable level.
- Granting bail to a person on an ICO carries additional weight: non-compliance with bail conditions may trigger administrative revocation of the ICO by the parole authority, resulting in the person being committed to serve the balance of the underlying custodial sentence.
- The question of whether charges would be laid for the subpoena non-compliance was expressly deferred by the Supreme Court, to be considered only after the witness appeared and gave evidence in accordance with his bail acknowledgement.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 312
- Bail Act 2013 (NSW)
Cases
- R v Lardner (No 5) [2026] NSWSC 816