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[2026] NSWSC 816
Supreme Court of NSW
2026-07-13
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 5) [2026] NSWSC 816
Hearing dates: 10 July 2026
Date of orders: 10 July 2026
Decision date: 13 July 2026
Jurisdiction: Common Law
Before: Campbell J
Decision: (1) The witness Cyril Davis, having been served with a subpoena requiring his attendance at the Supreme Court of NSW, sitting at Court 1, Port Macquarie Local Court, in the trial of R v Lardner, the witness has failed to appear at court as required or at any subsequent date.
(2) I am satisfied that his non-appearance is without just cause or reasonably excuse.
(3) I am satisfied that the witness would probably be able to give relevant evidence in the proceedings.
(4) I direct that a warrant be issued for the arrest of Cyril Davis (Junior).
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
Cases Cited: R v Lardner (No 2) [2026] NSWSC
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
The Crown have made an application for a warrant under s 194 of the Evidence Act 1995 (NSW) to be issued for the arrest of Mr Cyril Davis Junior to be brought to Court to give evidence in the ongoing trial of Mr Conrad Lardner for the murder of Mr David Vale. On 10 July 2026, I granted that application. These are my reasons for so doing.
This is the second application in these proceedings for the issue of a warrant where personal service of a subpoena has apparently been evaded. I set out the principles applicable to these applications in R v Lardner (No 2) [2026] NSWSC 786 and I do not propose to repeat them here. Simply put, where personal service has not occurred, in order for a warrant to issue: first, I must be satisfied that the witness has actual knowledge of the subpoena and its requirements; secondly, that the witness’s non-appearance is without just cause or reasonable excuse; and thirdly, that the witness will probably be able to give relevant evidence in these proceedings. Only when all three are satisfied will a warrant issue.
I turn then to the evidence of Detective Senior Constable Troy Smith, the OIC for this investigation.
Mr Davis Jr is currently on parole. Through communication with his Community Corrections officer (“CCO”) on 1 June 2026, DSC Smith obtained the phone number presently in use by Mr Davis Jr, which was provided to me. I will not publish it for privacy reasons. DSC Smith told the CCO that a subpoena had been issued for Mr Davis Jr attendance on 29 June 2026.
Police have made other strenuous efforts to personally serve Mr Davis Jr over the weeks leading up to the trial. I observe this to highlight that all reasonable attempts must be made to effect personal service, as bench warrants will not be issued in the absence of evidence to that effect.
Information obtained by Police suggested that Mr Davis Jr was residing with another person in Baryulgil. DSC Smith caused an officer from the local command to travel to that residence. On arrival, there was no answer, but a copy of the subpoena was left at that residence along with a card instructing Mr Davis Jr to call police.
DSC Smith again spoke to Mr Davis Jr’s CCO on 12 June 2026, who informed him that she was scheduled to meet Mr Davis Jr on 19 June 2026 at 11:00 am. DSC Smith asked whether the Community Corrections officer would serve the subpoena, but the CCO declined.
Later that day, DSC Smith called the phone number referred to above. A female initially answered the call, but after a request to speak to Mr Davis Jr, a male came onto the line. DSC Smith recognised this voice as belong to Mr Davis Jr from previous interactions, although he did not explicitly identify himself. The male asserted the female voice was AI generated.
After further discussion with the CCO, DSC Smith obtained information that Mr Davis Jr was intending on returning to a specified Kempsey address to live with his partner. On 18 June 2026, DSC Smith caused a copy of the subpoena to be placed in every marked Police vehicle in Kempsey.
Police attempted to serve Mr Davis Jr during his pre-arranged 11:00 am Community Corrections meeting on 19 June 2026. Mr Davis Jr did not attend. It later appeared he instead reported at 3:00 pm that day. Police attempted to serve him again on 26 June 2026 at 11:30 am, being his next scheduled Community Corrections meeting, but he was unable to be located at that time.
Having obtained a fresh subpoena returnable on 6 July 2026, DSC Smith attempted to personally serve Mr Davis Jr at the Kempsey address provided by the CCO. His sometime partner, who was home, told DSC Smith that they had separated and she was unaware of Mr Davis Jr’s whereabouts.
This was Ms Maddison Walker who gave evidence in the trial on 7 July 2026. On that occasion, she described Mr Davis Jr as her ex-partner (297.20-37T; 302.2T). She said she had not seen him since his just after his release, last had communication about one month ago and believed him to be living in Kyogle.
On 29 June 2026, having made further efforts to locate and serve Mr Davis Jr without success, DSC Smith sent “screenshots” of the subpoena to the phone number referred to above which I reiterate had been provided to police by the CCO as Mr Davis Jr’s contact number. DSC Smith, through the Crown, undertook to provide a printout of that message by 13 July 2026, which became Exhibit VD 11.
As the phone number is the contacted used by Mr Davis Jr’s, and he has apparently responded to the CCO’s requirements by that means, I am satisfied that he actually received the text message and attachments sent by DSC Smith, when sent.
I accept that Mr Davis Jr, from at least 29 June 2026, has had actual knowledge of the subpoena and its requirements. Nothing in evidence suggests to me that there is just cause or reasonable excuse for Mr Davis Jr’s nonattendance.
The test for whether the witness will probably be able to give relevant evidence is an undemanding one.
Mr Davis Jr gave a statement to the Police in connection with this matter on 26 April 2023. From that statement, Mr Davis Jr was inside of 76 M Street at the time of the fatal incident and came out onto the street in time to see the Accused being taken away by Ms Davis-Gatt into the car of Ms Holten. This much appears to be confirmed by Exhibit 10, the CCTV compilation.
Much of the most cogent evidence in the statement is hearsay, but those representations have the potential to be highly probative if admitted into evidence. Not only do they relate to the stabbing itself, but also, potentially shed more light on the ‘grievance issue’, that is to say, the cause of the dispute between the Accused and the Deceased.
I am satisfied that Mr Davis-Jr would probably be able to give relevant evidence in these proceedings.
I therefore made the following orders:
The witness Cyril Davis, having been served with a subpoena requiring his attendance at the Supreme Court of NSW, sitting at Court 1, Port Macquarie Local Court, in the trial of R v Lardner, the witness has failed to appear at court as required or at any subsequent date.
I am satisfied that his non-appearance is without just cause or reasonably excuse.
I am satisfied that the witness would probably be able to give relevant evidence in the proceedings.
I direct that a warrant be issued for the arrest of Cyril Davis (Junior).
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Anonymisation
R
Lardner (No 5)
[2026] NSWSC 786