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[2026] NSWSC 786
Supreme Court of NSW
2026-07-07
Campbell J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Lardner (No 2) [2026] NSWSC 786
Hearing dates: 03 July 2026
Date of orders: 03 July 2026
Decision date: 07 July 2026
Jurisdiction: Common Law
Before: Campbell J
Decision: Under s 194 of the Evidence Act 1995 (NSW), order that a warrant be issued for the arrest of Leearna Davis-Gatt.
Catchwords: CRIMINAL PROCEDURE – subpoena – application for bench warrant – where subpoena to attend and give evidence not personally served – whether witness has actual knowledge of the subpoena and its requirements – whether witness will probably be able to give relevant evidence
Legislation Cited: Evidence Act 1995 (NSW), s 194(1)
Crimes Act 1900 (NSW), s 315
Supreme Court Act 1970 (NSW), s 17, Third Sch
Supreme Court Rules 1970 (NSW), Pt 75 r 3
Uniform Civil Procedure Rules 2005 (NSW), Pt 33
Category: Procedural rulings
Parties: Rex (Crown)
Conrad Peter Lardner (Accused)
Representation: Counsel:
B Costello (Crown)
D Stewart (Accused)
Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Ross Hill & Associates Solicitors (Accused)
File Number(s): 2023/ 00157957
Publication restriction: Nil
HIS HONOUR: On 14 May 2026, the Crown caused a subpoena to give evidence at the trial of Mr Conrad Lardner for the murder of Mr David Vale commencing on 29 June 2026 to be issued for the attendance at court of Leearna Davis-Gatt (Exhibit VD 5).
On the Crown case, Ms Davis-Gatt is a material witness apparently having been present at premises at South Kempsey where and when an altercation between the accused and the deceased ended with the former inflicting a fatal stab-wound on the latter. From the opening statement of Mr D Stewart of counsel, who appears for the accused, the central and substantial issue in the proceedings is whether the Crown is able to negative self-defence beyond reasonable doubt. Part of this issue at the level of contested primary fact is which of them introduced the knife into their fight. The defence, who carry no onus, say the deceased produced the knife during the fight.
As is her right, Ms Davis-Gatt has steadfastly declined to make a statement to investigating police or otherwise co-operate with them. Without speculating on the nature of the evidence that she may be able to give, the Crown says she has made representations to another witness which suggest that she is an eyewitness to the fatal incident. Other evidence, including contemporaneously recorded CCTV footage (Exhibit 10) has her on the scene in the very immediate aftermath of the incident. She is said to have assisted or guided Mr Lardner into Ms Veronica Holten’s car in which he was driven away from the locale and dropped off at his request about two to three kilometres away.
On 3 July 2026, on the application of the learned Crown Prosecutor, I issued a warrant under s 194 of the Evidence Act 1995 (NSW) (“the Evidence Act”) to bring Ms Davis-Gatt before the Court to give evidence. I did so because on the evidence of Detective Senior Constable Troy Smith I was satisfied that Ms Davis-Gatt had been served with the subpoena, her non-appearance was without reasonable excuse, and she probably had relevant evidence to give in the trial. These are my reasons for that decision.
194 Witnesses failing to attend proceedings
(1) If a witness fails to appear when called in any civil or criminal proceedings and it is proved that he or she has been duly bound by recognisance or served with a summons or subpoena, the court may—
(a) order the witness to show cause at those or later proceedings why execution of the recognisance or an attachment for disobedience to the summons or subpoena should not be issued against the witness, or
(b) if it is proved that the non-appearance is without just cause or reasonable excuse and that the witness will probably be able to give relevant evidence in the proceeding, issue a warrant to bring the witness before the court to give the evidence.
(a) The witness has been served with a subpoena; (b) That I am satisfied on the balance of probabilities that the non-appearance is without just cause or reasonable excuse; and (c) That I am satisfied on the balance of probabilities that the witness will probably be able to give relevant evidence in the proceedings.
As often occurs with subpoenas to give evidence in criminal trials, an issue of service has arisen. The Crown concedes that Ms Davis-Gatt was not personally served with the subpoena. However, the provisions which relate to the service of subpoenas in criminal trials before this Court are surprisingly labyrinthine and warrant some analysis.
Section 17(1) of the Supreme Court Act 1970 (NSW) (“the SC Act”) provides that for proceedings specified in the Third Schedule, the Supreme Court Rules 1970 (NSW) (“the SCR”) and the SC Act do not apply except as otherwise provided for. The Third Schedule covers criminal proceedings in the Court’s jurisdiction, and relevantly includes proceedings on indictment, such as these. But by dint of s17(2) of the SC Act the Court has power to make rules regulating and prescribing the practice and procedure of the Court in proceedings to which the Third Schedule applies.
Applicable provisions are found in SCR Pt 75. Relevantly, SCR Pt 75 r 3 imports some of the rules relating to subpoenas from Part 33 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). The most important carve-out for present purposes is that by force of SCR Pt 75 r 3, the obligation under UCPR r 33.5 to effect personal service of a subpoena does not apply to subpoenas issued by the Crown: SC Pt 75 r 3(1)(g)(ii).
The question that arises, therefore, is what constitutes service of a subpoena issued by the Crown? Certainty, personal service will be the most effect means of establishing actual knowledge of the subpoena and its requirement but the plain intention of the carve-out provision is that something less than personal service will suffice. But regardless, UCPR r 33.6(3), which does apply to subpoenas issued by the Crown is in the following terms:
(3) Despite rule 33.5(1), an addressee must comply with the requirements of a subpoena even if it has not been served personally on that addressee if the addressee has, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements.
(cf UCPR r 10.14(3) dealing with informal service.)
This provision has the legal effect that a subpoena binds a recipient where they have ‘actual knowledge of the subpoena and its requirements’. The provision applies in all cases to which the rule ordinarily applies despite the requirement for personal service, which, as I have said, is not applicable here. The reference to r 33.5(1) at the commencement is immaterial as the specific rules adopted by SCR Pt 75 r 3 operate in criminal proceedings to which the Third Schedule, SC Act only “so far as applicable”. Likewise, in criminal proceedings no “last date for service” is prescribed.
DSC Smith gave evidence on the voir dire much of which was hearsay admissible under the s 75 of the Evidence Act given a voir dire is an interlocutory proceeding: s 142 of the Evidence Act. The standard of proof is persuasion on the balance of probabilities.
On 5 April 2023, Ms Davis-Gatt attended the Kempsey Police Station in accordance with her reporting conditions for bail granted for a charge of hindering Mr Lardner’s apprehension on 1 March 2023 contrary to s 315(1)(c) of the Crimes Act 1900 (NSW) (Exhibit VD 4). In response to a police request that she make a statement about the events of 1 March 2023, she refused, as was her right as shared by the whole community. Generally speaking, no-one is obliged to co-operate with police investigations. Some additional explanation for Ms Davis-Gatt’s reluctance to cooperate, were that necessary, may be provided by the charge against her and her specific right to silence in respect of it.
Unfortunately, however Ms Davis-Gatt has a history of failing to comply with court orders requiring her attendance at court for this matter. She was served with a subpoena to give evidence in committal proceedings listed for 14 February 2025 in this matter. That subpoena was served on 1 February 2025. Without lawful excuse, she failed to appear. A warrant was issued and executed. When she was brought before the court pursuant to the warrant, she was granted bail subject to her undertaking to appear at the adjourned committal proceedings on 28 July 2025. Again, she failed to appear, which appears to have been a fundamental breach of her bail.
During the weeks leading up to this trial and perhaps anticipating the difficulty that they may face with locating Ms Davis-Gatt, NSW Police spent considerable time and resources attempting to serve her with the subpoena at various different locations. It is not necessary to set out each attempt to bring the subpoena to her attention in full, save as to say I accept DSC Smith’s evidence in this regard without reservation. The police efforts involved attending multiple premises frequented by, or known to be occupied by persons connected to Ms Davis-Gatt and attempting to use proxies to contact Ms Davis-Gatt through her social media accounts.
However, I had particular regard to two occurrences taking place one month apart. First, on the morning of 2 June 2026, Ms Davis-Gatt was stopped by Senior Constable Luke Love, a highway patrol officer. On that occasion, Snr Const Love told Ms Davis-Gatt that a subpoena for her to give evidence at this trial commencing on 29 June 2026 had been issued. He asked her to wait while other police came to serve her personally. This she apparently refused to do because she ran off into a vacant lot and clambered over a fence into a backyard and made good her escape by an otherwise unknown route. I am satisfied this was done to evade service. The following day DSC Smith caused a printed copy of the subpoena to be distributed through the acting sergeant of the Kempsey Police Station and placed in all marked vehicles so that a copy would be to hand should patrolling police happen upon her.
Secondly, on Thursday, 2 July 2026, police received information that Ms Davis-Gatt was in the South Kempsey area. Upon attending certain premises there, DSC Smith made enquiries of the occupier, who is known to Ms Davis-Gatt, and who informed him that they had seen her that morning. DSC Smith then proceeded to another location where he considered Ms Davis-Gatt may be, but without success, and then to a third venue. That third venue is the home of Ms Davis-Gatt’s former partner and the father of their child, as well as her former partner’s mother. They informed DSC Smith that they had seen Ms Davis-Gatt two days previously. DSC Smith told them that he needed to serve a subpoena on Ms Davis-Gatt. The evidence establishes, more broadly, that police stationed in Kempsey have been informing people who have an association with her that Ms Davis-Gatt was sought for the purpose of serving a subpoena on her to give evidence in this trial.
From DSC Smith’s evidence, I am satisfied that Ms Davis-Gatt had actual knowledge that she was required to attend Court in answer to the subpoena in order to give evidence in this trial since at least 2 June 2026. I am satisfied that concerted efforts have been made by local police in the intervening period to serve her with a physical copy of the subpoena, and those efforts have included informing her family and associates of the subpoena and its attendant obligations.
I would interpolate here that the commencement date for the trial has clearly been a notorious fact within the local community. The trial has been exceedingly well-attended on each sitting day with the public gallery full to overflowing, and it clear that members of the local community, which is a close knit one, have a keen interest in these proceedings. This adds to my satisfaction of Ms Davis-Gatt’s actual knowledge of the subpoena and of its requirements.
I turn now to whether I am satisfied on the balance of probabilities that the witness will probably be able to give relevant evidence in the proceedings. The test is not particularly demanding. The statement of agreed facts tendered during her proceedings on sentence for the s 316 offence are informative and were in evidence before me (Exhibit VD 6). It appears from those facts that Ms Davis-Gatt was present during the fatal altercation and assisted Mr Lardner into the vehicle of Ms Holten in its immediate aftermath. Although she has made no statement, I am satisfied that she is probably able to give relevant evidence about the fatal incident which is a fact in issue in these proceedings.
There is no evidence before me capable of suggesting Ms Davis-Gatt has either just cause or reasonable excuse for not attending court as required by the subpoena. On the contrary the whole of the evidence before me establishes on the balance of probabilities that she is consciously and persistently evading personal service.
The interests of justice militate only in favour of the issue of a warrant for the arrest of Ms Davis-Gatt for the purpose of bringing her to court to give evidence in what is a matter of grave importance for the whole community. Accordingly, under s 194 of the Evidence Act 1995 (NSW), I ordered that a warrant for the arrest of Leearna Davis-Gatt be issued.
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R
Lardner (No 2)