R v Chambour; R v Khallouf (No 3) [2016] NSWDC 262

R v Chambour; R v Khallouf (No 3) [2016] NSWDC 262

Although the subpoena form used by the DPP was not invalid merely because it was not Supreme Court Form 74AC, and service by placing the subpoena in Christopher James Pattison's postal box was good service, the Crown had not proved that Pattison was unavailable. The evidence showed he was in Australia, resident in a Sydney suburb and worked locally, but the Crown had only left a subpoena in his postbox and had not sought or attempted to serve a warrant for his arrest. Accordingly, all reasonable steps to compel him to give evidence had not been taken, so the s 67 application was refused. For the same reasons, a warrant was ordered under s 194(1)(b) requiring his attendance to give evidence.

Jurisdiction
Australia
Judgment Date
29 September 2016
Procedural Posture
Criminal / Procedural Ruling on Crown Application Under S 67 of the Evidence Act 1995 and Further Application for Warrant
Outcome
Application pursuant to s 67 of the Evidence Act 1995 refused; warrant issued pursuant to s 194(1)(b) of the Evidence Act 1995 for the arrest of Christopher James Pattison requiring his attendance to give evidence.
Legal Topics
['subpoena to Give Evidence' 'form of Subpoena' 'service of Subpoena' 'unavailability of Witness' 'first Hand Hearsay' 'warrant for Arrest of Witness']
['criminal Law' 'evidence' 'practice and Procedure'] ['subpoena to Give Evidence' 'form of Subpoena' 'service of Subpoena' 'unavailability of Witness' 'first Hand Hearsay' 'warrant for Arrest of Witness']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal / Procedural Ruling on Crown Application Under S 67 of the Evidence Act 1995 and Further Application for Warrant

Legal Issues

  1. 1 ['Whether Supreme Court Rules Pt 75 and Supreme Court Form 74AC applied to criminal proceedings in the District Court.' 'Whether District Court Act 1973 s 171D mandated use in the District Court of Supreme Court Form 74AC.' "Whether delivery of a subpoena to Christopher James Pattison's postal box was adequate service under District Court Rules Pt 53 r 20." 'Whether the Crown had proved that Christopher James Pattison was unavailable for the purposes of s 67 of the Evidence Act 1995.' "Whether a warrant should issue under s 194(1)(b) of the Evidence Act 1995 requiring Christopher James Pattison's attendance to give evidence."]

Ratio Decidendi

Although the subpoena form used by the DPP was not invalid merely because it was not Supreme Court Form 74AC, and service by placing the subpoena in Christopher James Pattison's postal box was good service, the Crown had not proved that Pattison was unavailable. The evidence showed he was in Australia, resident in a Sydney suburb and worked locally, but the Crown had only left a subpoena in his postbox and had not sought or attempted to serve a warrant for his arrest. Accordingly, all reasonable steps to compel him to give evidence had not been taken, so the s 67 application was refused. For the same reasons, a warrant was ordered under s 194(1)(b) requiring his attendance to give evidence.

Court Disposition

Application pursuant to s 67 of the Evidence Act 1995 refused; warrant issued pursuant to s 194(1)(b) of the Evidence Act 1995 for the arrest of Christopher James Pattison requiring his attendance to give evidence.

Orders

  • ['Application pursuant to s 67 of the Evidence Act 1995 refused.' 'A warrant issue for the arrest of Christopher James Pattison requiring his attendance before the Court to give evidence.' 'The warrant not be served prior to 6.00 am on Tuesday 4 October 2016.' 'The warrant issues under s 194(1)(b) of the Evidence...