Background
Conrad Peter Lardner stands trial for the murder of David Vale, who died from a stab wound sustained during an altercation at South Kempsey on 1 March 2023. The Crown called for Leearna Davis-Gatt to testify, as she was present at the fatal incident and assisted Lardner to a vehicle immediately afterward. CCTV footage and contemporaneous evidence corroborate her presence at the scene.
Davis-Gatt steadfastly refused to cooperate with police, declining to provide a statement despite investigating officers’ requests. The Crown issued a subpoena for her to give evidence at trial, scheduled to commence on 29 June 2026. When Davis-Gatt failed to appear, the Crown applied under section 194 of the Evidence Act 1995 (NSW) for a warrant to bring her before the court.
A complicating procedural history existed: Davis-Gatt had been previously charged with hindering Lardner’s apprehension, was served with a subpoena for committal proceedings in February 2025, failed to appear, was arrested by warrant, and subsequently breached her bail by again failing to appear at an adjourned committal hearing in July 2025.
The Court’s Holding
Campbell J held that section 194(1) of the Evidence Act requires three factual preconditions for issuing an arrest warrant: (1) the witness was served with a subpoena; (2) the non-appearance was without just cause or reasonable excuse; and (3) the witness will probably give relevant evidence. The court granted the warrant.
On the service question, the court clarified that while personal service of Crown subpoenas is not mandatorily required under Supreme Court Rules 1970 Part 75 r 3, service is established if the witness has “actual knowledge of the subpoena and of its requirements” under UCPR r 33.6(3). Campbell J found Davis-Gatt possessed actual knowledge since at least 2 June 2026, when Senior Constable Love directly informed her of the subpoena and the trial’s commencement date. Thereafter, police made extensive efforts to formally serve her, including distributing copies to all marked vehicles and informing her family and associates of the subpoena’s requirements. The court noted Davis-Gatt’s deliberate evasion—she fled on foot and scaled a fence when police attempted to serve her—demonstrated consciousness of obligation rather than any lack of notice.
As to relevance, the court held the test “not particularly demanding.” Davis-Gatt was present at the fatal altercation and assisted Lardner’s escape, making her plainly able to give relevant evidence on facts in issue, particularly the central question of whether self-defence has been negatived and who introduced the knife. No evidence supported any just cause or reasonable excuse for her non-appearance; the whole evidentiary picture showed conscious and persistent evasion of service. Accordingly, the warrant issued.
Key Takeaways
- Personal service of a Crown subpoena in NSW criminal trials is not required; actual knowledge of the subpoena and its requirements suffices under UCPR r 33.6(3).
- Actual knowledge can be inferred from direct notification, circulation of the subpoena through police channels, and third-party communications to the witness’s associates, reinforced by the notorious nature of the proceeding within the local community.
- Active evasion of service—such as fleeing police or refusing to remain for formal service—demonstrates consciousness of obligation and negates any claim of lacking notice.
- The threshold for finding a witness will “probably” give relevant evidence is not demanding; presence at a material event and involvement in its aftermath suffice.
- Warrants to compel witness attendance are appropriate where the proceeding concerns grave matters of public importance and the witness has persistently evaded service without lawful excuse.
Why It Matters
This decision clarifies the practical operation of witness compulsion under section 194 of the Evidence Act in serious criminal trials. By anchoring the service requirement to “actual knowledge” rather than rigid adherence to personal service, the court accommodates the reality that hostile or evasive witnesses—particularly those with prior breach of court orders—may systematically frustrate attempts at formal service. The judgment shows that police investigative efforts, combined with third-party notification and the witness’s own knowledge of the proceeding’s notoriety, can establish sufficient notice to justify arrest where cooperation fails.
For prosecutors in NSW, the decision confirms that Crown subpoenas need not strictly comply with personal service protocols when witnesses have actual awareness. For defence practitioners and witnesses, it underscores that deliberate avoidance of police or evasion of service will not excuse non-compliance; the court will consider circumstantial evidence of knowledge and may issue arrest warrants to compel attendance in cases of grave public concern, regardless of prior cooperation refusals.