Article: Subpoenaed as Court Witnesses

Can any person be subpoenaed as witness in a trial?

There is no property in a witness. The reason is because the court has a right to every man’s evidence. Its primary duty is to ascertain the truth. Neither one side nor the other can debar the court from ascertaining the truth either by seeing a witness beforehand or by purchasing his evidence or by making communication to him. In no way can one side prohibit the other side from seeing a witness of fact, from getting the facts from him and from calling him to give evidence or from issuing him with a subpoena: Harmony Shipping Co. S.A. v. Saudi Europe Line Ltd. [1979] 1 WLR 1380 (CA) at 1385-1386.

In The Lao People’s Democratic Republic v Sanum Investments Ltd & Anor [2013] 4 SLR 947, at [17], the High Court summarised the procedure concerning a subpoena: ‘In the ordinary course, a subpoena is issued by the court and then served on the witness or non-party who is to be compelled under it to testify or to produce documents. The issuance of a subpoena is normally a ministerial act on the court’s part. An application may then be made inter partes by the witness or non-party for the subpoena to be set aside on the relevant and applicable grounds.’

Therefore, the court applies a balancing test to the interests of the person required to produce the documents and the necessity, relevance and significance of the documents to the issues in the case. Precision in the description of documents is necessary for the person summoned to know what he has to produce: [23], [28].

The subpoena process must not be used as a disguised discovery application: ‘… the purpose of a subpoena is to bring evidence directly to the court [emphasis by author]. In contrast, an application for discovery is made at quite a different stage …’ (ie, usually much earlier in the proceedings): [24].

Unlike the principles governing the scope of general and specific discovery, the test for a subpoena to produce documents is more stringent: ‘… what is sought must be relevant, material and necessary for the fair disposal of the matter’: [20]-[22].

Where a person is required by a subpoena to produce documents to produce a document, he does not thereby become a witness and he cannot be cross-examined (s 141 of the Evidence Act). He may, however, become a witness if he reveals personal knowledge about the circumstances of the case.

What happens if a person ignores or fails to comply with the subpoena?

The subpoena is an order of court.

Therefore, if the person fails to comply the subpoena, he may be liable for contempt of court.

What if the person is unable to comply with the subpoena?

However, the person may not be so liable if the document requested to be produced pursuant to the subpoena is no longer in his possession (R v Stuart (1886) 2 TLR 214).

Also, committal proceedings may not lie if the person was not served with the writ and had no idea that his presence was required in court.

In cases where the subpoenaed person ordered to produce a document only has the document as a custodian and would not normally be entitled to disclose the document without his principal’s consent or authority, this would generally not excuse non-compliance with the subpoena. However, the court has the discretion to excuse a person from producing documents in certain circumstances. E.g. employee considered not to be obliged to produce documents which would be in violation of his duty to his employer; a banker  may be required to produce a document in his possession even though he was not entitled to deliver it up without the depositor’s consent. Sometimes, the confidentiality of the documents may be particularly sensitive and disclosure would be excused.

What would suffice as reasons to object to, set aside and/or revoke a subpoena?

Abuse of Process

A subpoena should only be obtained for the purpose of adducing relevant evidence. If a party’s use of the procedure is not bona fide, the court may treat his conduct of issuing a subpoena as an abuse of the process of the court. Such a subpoena may then be set aside or revoked. Abuse of process may be, for instance, calling a lawyer who knows nothing about the facts so that he cannot represent the opposing party. The court can set aside a subpoena for abuse of process pursuant to its inherent jurisdiction.

A subpoena “should not be used frivolously or in a scandalous manner, that is without any basis or reason so as to embarrass or inconvenience the person subpoenaed”. However, the person served with a subpoena ought not to take out a separate application to set it aside except in the clearest cases (Ong Jane Rebecca v Lim Lie Hoa and others [2003] 1 SLR(R) 457, at [6]).

The court may set aside a subpoena if the witness would be oppressed as a result of giving the evidence required.

Relevant, Material and Necessary For The Disposal Of The Matter

A subpoena to produce documents may be improper if it in effect amounts to an order for discovery. Under the test in an application for specific discovery, it is enough that a document might lead to a train of inquiry which might assist a party in the conduct of his litigation. In contrast, the touchstone of a valid subpoena to produce documents is more stringent: what is sought has to be relevant, material, and necessary for the disposal of the matter: The Lao People’s Democratic Republic v Sanum Investments Ltd and another and another matter [2013] 4 SLR 947 (HC) at [24] and [27]; Ong Jane Rebecca v Lim Lie Hoa & Ors. [2003] 1 SLR(R) 457 (HC) at [8]; Macmillan Inc v Bishopsgate Investment Trust plc [1993] 1 WLR 1372 (CA); Dolling-Baker v. Merrett and Another [1990] 1 WLR 1205 (CA) at 1212-1213.

A subpoena may be set aside if it were merely a fishing expedition for documents in the hope that they may be relevant or necessary for disposing fairly of the cause or matter: Macmillan Inc v Bishopsgate Investment Trust plc [1993] 1 WLR 1372 (CA).

Scope of Subpoena Too Wide

A possible objection to a subpoena is that it is too wide if it imposes an unduly onerous obligation upon a person to collect and produce documents which have little or no relevance to the proceedings at hand. A subpoena may be regarded as too wide if compliance with its wording would be oppressive.

Where a subpoena is directed to a non-party, it can be set aside if it the subpoena’s wording is insufficiently precise and requires the non-party to make a judgment as to which documents relate to the issues between the parties.

Privilege and Confidentiality

A subpoenaed person may object to the subpoena on the basis that complying with the subpoena may result in a breach of confidentiality or that the information or documents requested are protected by privilege. However this is a fact-sensitive inquiry.

The obligation of a witness under a subpoena to produce documents is subject to Section 133 of the Evidence Act. That means that the privilege protection stipulated in the Evidence Act, particularly sections 123-132, could bar compulsory production of documents.

A witness summoned to produce a document shall, if it is in his possession or power, bring it to court notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the court: section 164 of the Evidence Act.

One ground of objection to giving evidence pursuant to a subpoena is that the evidence is protected by legal professional privilege. They cannot be communicated to the court except with the consent of the party concerned. Such communications cannot be given in evidence to the court. If questions were asked about it, then it would be the duty of the judge to protect the witness (and he would) by disallowing any questions which infringed the rule about legal professional privilege or the rule protecting information given in confidence – unless, of course, it was one of those rare cases which come before the courts from time to time where in spite of privilege or confidence the court does order a witness to give further evidence: Harmony Shipping Co. S.A. v. Saudi Europe Line Ltd. [1979] 1 WLR 1380 (CA) at 1385-1386; Marcel v. Commissioner of Police [1992] 1 Ch. 225 (CA) at 257.

Another ground of objection to giving evidence pursuant to a subpoena is that the evidence is protected by the privilege against self-incrimination. The court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer. The privilege is not available where the witness is already at risk, and the risk would not be increased if he were required to answer: Marcel v. Commissioner of Police [1992] 1 Ch. 225 (CA).

While there is a public interest in upholding and protecting the obligation of confidentiality (not least, confidentiality in respect of documents seized by the police under the exercise of their relevant powers), there is a competing public interest in ensuring a full and fair trial on full evidence in civil cases. The determination of this balance depends on the circumstances of the particular case: Marcel v. Commissioner of Police [1992] 1 Ch. 225 (CA) at 265-267; Dolling-Baker v. Merrett and Another [1990] 1 WLR 1205 (CA) at 1213-1214.

That the internal documents sought to be produced were the property of the witness was not a bar to the issue of a subpoena for them to be produced. Instead because a subpoena to produce documents might sometimes be an invasion into the confidentiality and privacy of a third party, the proprietary and confidential nature of the documents imposed on the court a duty to be utterly scrupulous in ensuring that it was satisfied as to the relevance of the documents: The Lao People’s Democratic Republic v Sanum Investments Ltd and another and another matter [2013] 4 SLR 947 (HC) at [22].

How long will A subpoena last?

Unless and until the subpoena is set aside or revoked, the subpoena continues to operate until the conclusion of the trial.

Subpoena may not be served on a person not physically present in Singapore

The subpoena can only be served on someone within Singapore.

To obtain evidence of persons outside of Singapore, the party must apply to the court for a letter of request to the judicial authorities or government of the foreign country in which the person is located requesting for evidence to be taken from that person, or an order appointing a special examiner of a Singapore consul in that country to take the evidence of that person (O 39 r 2).

Witness Expenses

A witness is entitled to a reasonable sum to cover his travel expenses, i.e. expenses of going to, remaining at, and returning from the Court for the purposes of testifying at the trial: O 38 r 22. Although only travel expenses are expressly entitled, it would be appropriate to provide the witness a reasonable allowance for food and refreshments.

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