The Act rests on a compact set of concepts and definitions that structure how attendance is compelled and enforced.

• Court: defined as the Supreme Court of Tasmania (s 3). All powers to issue recognisances, warrants and orders under the Act derive from that Court and its judges.
• Criminal proceeding: defined broadly to include contempt proceedings, hearings on pleas of guilty, certain proceedings under the Criminal Code (sections 357 and 409) and applications to a single judge or associate judge under the Criminal Code Act 1924, and any other proceeding held for the criminal jurisdiction of the Court, but expressly excludes appeals to the Court of Criminal Appeal (s 3). The Act therefore applies to a wide set of substantive criminal processes within the Court’s jurisdiction.
• Notices: two discrete statutory instruments, preliminary notice and final notice, are central. A preliminary notice in prescribed form is issued by the Registrar on application and must be served on the intended witness by the applicant as soon as practicable (s 5(1), (3)). The preliminary notice must include a statement of the duties imposed under the Division (s 8). Notably, the preliminary notice does not itself create a duty to attend; that obligation arises only when a final notice is served (s 5(2)). The final notice is likewise issued by the Registrar on application and must specify the date, time and place and penalties for non-compliance; it must be served by or at the behest of the applying party as soon as practicable after issue (s 10(1)-(2)).
• Recognisance: a judge may require an intended witness to enter into a recognisance in such terms as the judge thinks fit to secure attendance or production of material (s 12(1)). A recognisance may be forfeited to the Crown on non-appearance (s 12(2)), but the witness may defend a forfeiture on inability to afford reasonable transport (s 12(3)) and may show cause for a judge to discharge whole or part of a forfeiture (s 12(4)).
• Arrest warrant: where there are reasonable grounds to believe an intended witness has failed or is likely to fail to attend, a judge may issue a warrant for arrest, whether or not a recognisance has been entered (s 13(1)). The judge may require custody until evidence is given, or may set recognisance terms and release the witness on entering into those terms (s 13(3)-(4)). At the application hearing the judge may inform herself or himself in any manner the judge thinks fit (s 13(2)).
• Excusal from attendance: an intended witness may apply to the Registrar to be excused before trial (s 14(1)). Where the prosecutor or accused opposes the application, the Registrar must refer it to a judge; the judge may excuse the witness if in the interests of justice, with specific matters listed for consideration such as inability to give material evidence or unreasonable hardship (s 14(2)-(3)).
• Payments and abolition of prior procedural devices: the Act abolishes the requirement to tender conduct money (s 16(1)) and abolishes use of subpoenas in criminal proceedings from commencement (s 18(1)). In place of those devices the Act provides a statutory entitlement and mechanism for witness expenses in limited categories (s 17) and leaves regulation-making power to address procedural details including the issue of summonses for non-compliance (s 20(2)(c)).
• Enforcement and penalties: failing to comply with final notice or recognisance without a reasonable cause, and failing to take all reasonably available steps to comply, is a summary offence carrying a fine up to 20 penalty units and/or imprisonment up to 6 months (s 19(1)). The Act provides, to an accused witness, a statutory defence of inability to afford reasonable transport in prosecutions for that offence (s 19(2)).

These concepts operate together. The Act centralises notice issuance through the Registrar, makes attendance obligations conditional on service of a final notice, replaces traditional subpoena procedures with statutory mechanism, and provides judicial discretion in recognisance terms, arrest and excusal, with statutory protections and limited expense entitlements.

The Act creates obligations and rights that fall primarily on four distinct groups, described as parties in the source text, and also imposes duties on Court officers and the State.

• Applicants for compulsion mechanisms: Any party to a criminal proceeding may apply for preliminary and final notices, recognisances and warrants. The Act lists the prosecutor, an accused person, an applicant, a respondent to an application or any other person who is a party to a criminal proceeding as eligible applicants (s 5(1), s 10(1), s 12(1), s 13(1)). That means both prosecution and defence sides, and other statutory parties in a criminal proceeding, may initiate the statutory measures to secure attendance or production.
• Intended witnesses: Persons named as witnesses in preliminary or final notices are directly affected. An “intended witness” is defined as a person named in a preliminary notice or final notice (s 3). Intended witnesses face specified duties: they must respond to preliminary notices concerning change of address or inability to attend (s 6), they are not required to attend until served with a final notice (s 5(2)), they must attend on the date specified in the final notice and then day to day until excused by the Court (s 15), and they may be required to enter into recognisances or be arrested under warrant where reasonable grounds exist to believe they have failed or will fail to attend (s 12(1), s 13(1), (3)).
• The Court and its officers: The Registrar has procedural duties, required to issue preliminary and final notices on application (s 5(1), s 10(1)) and to ascertain and pay expenses according to the prescribed scale (s 17(3), (7)). Judges have discretionary powers to set recognisance terms and to issue warrants for arrest, to decide excusal applications referred by the Registrar, and to order discharge of forfeiture or limits on payment (s 12(1), (3)-(4), s 13, s 14(2)-(3), s 17(5)-(6)). The Court may make orders for payment of expenses (s 17(2)).
• The State and Crown: The Act provides that forfeited recognisances are payable to the Crown (s 12(2)), and that witness expenses are to be paid out of money provided by Parliament (s 17(7)). The Governor may make regulations under the Act (s 20). Administration of the Act is assigned to the Minister for Justice and the Department of Justice until otherwise provided (s 24).
• Persons excluded from the Act: The Act does not apply to persons who, under any other Act or law, may not be compelled to attend as witnesses in a criminal proceeding, nor to persons required by writ of habeas corpus ad testificandum or habeas corpus ad respondendum (s 4). This carve-out means statutory privilege or other statutory immunities may displace the Act’s compulsory mechanisms.

Distribution of rights and burdens.

• Parties applying for notices gain a streamlined statutory path to secure attendance and production, but must serve final notices as soon as practicable after issue and face judicial discretion on recognisances and warrants (s 10(2), s 12(1), s 13(1), (3)).
• Intended witnesses take on compulsory attendance obligations once served with a final notice and may face recognisances, forfeiture and criminal sanction for non-attendance, albeit with a statutory defence of inability to afford transport (s 15, s 12(2)-(3), s 19(1)-(2)). They can, however, apply to the Registrar to be excused prior to trial and seek judicial relief against enforcement measures (s 14, s 12(4)).
• The State bears expense obligations in defined circumstances (s 17(7)), and receives forfeited recognisances (s 12(2)).

The Act thereby reshapes the incentives and burdens across parties, witnesses, Court officers and the State by consolidating notice functions in the Registrar, enabling judicially tailored recognisances and detention powers, and prescribing the limited circumstances in which the State pays witness expenses.

This section sets out the principal actionable duties and enforceable rights that the Act creates for applicants, intended witnesses, judges and the Registrar, with direct references.

Duties imposed on parties who apply for notices and related measures

• Application duty: Any eligible party may apply to the Registrar for a preliminary or final notice; on such application the Registrar must issue the preliminary or final notice in the prescribed form (s 5(1), s 10(1)). The Act therefore places a positive duty on the Registrar to issue on application; it places a corresponding duty on the applicant to ensure service (s 5(3), s 10(2)).
• Service duty: After the issue of a preliminary notice, the person who applied must cause the notice to be served on the intended witness as soon as practicable (s 5(3)). For a final notice the Act requires service by, or at the behest of, the person who applied for it as soon as practicable after it has been issued (s 10(2)). The service timing is material: the preliminary notice alone does not create an obligation to attend (s 5(2)), whereas service of the final notice does.

Duties and obligations of intended witnesses

• Notification obligations: A person served with a preliminary notice who plans to change residence, employment or business must give notice in writing as early as practicable, or orally where impracticable, to the person who caused the notice to be issued (s 6(1)). Where the served person becomes aware of circumstances likely to prevent attendance or giving evidence, the person must notify the issuer in writing as soon as practicable, or orally if impracticable (s 6(2)).
• Attendance obligation and continuity: A person served with a final notice is required to attend the criminal proceeding on the date specified in the notice and thereafter day to day until excused by the Court (s 15). A preliminary notice expires after six months (s 7), and notices cease to have effect when the accused is discharged from all proceedings relating to the offence (s 11).
• Rights to seek relief: An intended witness may apply to the Registrar to be excused from giving evidence before the hearing (s 14(1)). If opposed, the Registrar must refer the application to a judge, and the judge may excuse the witness if satisfied it is in the interests of justice (s 14(2)). The judge may consider listed matters such as inability to give material evidence or unreasonable hardship (s 14(3)).
• Recognisance and forfeiture: A judge may require the witness to enter into a recognisance to secure attendance or production (s 12(1)). If the witness bound by recognisance fails to appear, the Court may, on production of the recognisance, order forfeiture to the Crown (s 12(2)). The witness has a defence to a forfeiture if unable to afford reasonable transport (s 12(3)) and may apply to show cause why a condition of recognisance should not be enforced; the judge may discharge part or all of an amount ordered to be forfeited (s 12(4)).
• Criminal penalty and statutory defence: Failure to comply with a final notice or recognisance without reasonable cause, and failure to take all reasonably available steps to comply, is an offence punishable on summary conviction by a fine not exceeding 20 penalty units, imprisonment not exceeding 6 months, or both (s 19(1)). In prosecutions under s 19, it is a defence if the witness can show inability to afford reasonable transport to the proceeding (s 19(2)).

Powers and duties of judges and the Registrar

• Judicial discretion: Judges have discretionary power to set recognisance terms (s 12(1)), to inform themselves in any manner at application hearings (s 13(2), s 14(4)), to issue arrest warrants where reasonable grounds exist (s 13(1)), to hold an arrested witness in custody until the witness gives evidence or to release the witness on recognisance (s 13(3)-(4)), and to excuse witnesses in appropriate cases (s 14(2)-(3)). The Court may also reduce or deprive entitlement to witness expenses in specified circumstances (s 17(5)-(6)).
• Registrar duties: The Registrar must issue preliminary and final notices on application (s 5(1), s 10(1)), must include a statement of duties in preliminary notices (s 8), must ascertain witness expenses in accordance with a prescribed scale (s 17(3)), and must pay amounts ordered under the section out of parliamentary appropriations (s 17(7)). The Registrar must refer excusal applications to a judge when opposed by prosecution or accused (s 14(2)).

Rights to payment and constraints

• Statutory entitlement to expenses: Unless otherwise ordered, persons who give evidence at the request of the prosecution and persons certified by a Crown Law officer as having attended at the request of the prosecution are entitled to be paid expenses under s 17(1). The Court may also order payment of expenses to any person who attends to give evidence (s 17(2)). Expenses are determined by the Registrar according to the prescribed scale (s 17(3)). Payment is made from money provided by Parliament (s 17(7)). Certificates from examining justices supporting payment are recognised (s 17(4)-(8)).
• Abolition of conduct money: The statutory requirement to tender conduct money for appearance of a witness in criminal proceedings is abolished (s 16(1)), although past payments may be recoverable as money had and received (s 16(2)).

Regulatory power

• The Governor may make regulations for procedural matters under the Act, including procedure for applications, service of notices, the issue of summonses against intended witnesses who fail to comply and payment of witness expenses (s 20(1)-(2)).

Taken together, the Act assigns concrete duties to parties seeking compulsion, to witnesses, and to Court officers, while granting judges substantial procedural and enforcement discretion within specified statutory constraints.

The Act sets out a compact enforcement regime combining recognisance forfeiture, criminal sanction and judicially issued warrants, with statutory defences and mechanisms to limit enforcement in certain circumstances.

Criminal penalty for non-attendance

• The primary criminal sanction is in s 19. An intended witness who fails to appear and give evidence as required by a final notice or a recognisance, and who cannot show reasonable cause for failure and that all reasonably available steps were taken to comply, is guilty of an offence. The prescribed summary penalty is a fine not exceeding 20 penalty units or imprisonment for a period not exceeding 6 months, or both (s 19(1)). The Act provides a statutory defence in a prosecution under this section where the witness can show inability to afford reasonable transport to the criminal proceeding (s 19(2)).

Recognisance forfeiture

• A recognisance entered into to secure attendance or production may be forfeited to the Crown if the person bound fails to appear and give evidence pursuant to the recognisance, on production of the recognisance (s 12(2)). The recognisance scheme therefore provides a financial enforcement mechanism parallel to criminal sanction. The Act recognises inability to afford transport as a defence to forfeiture (s 12(3)). It also permits an intended witness bound by a recognisance to show cause before a judge within the time appointed, and on cause being shown the judge may inquire and, if fit, order the discharge of whole or part of the amount ordered to be forfeited (s 12(4)).

Judicial arrest and custody powers

• A judge may issue a warrant for the arrest of an intended witness where, on application, it appears there are reasonable grounds to believe the witness has failed or is likely to fail to attend in the proceeding as required by a preliminary or final notice (s 13(1)). This power applies whether or not the intended witness had previously entered into a recognisance (s 13(1)). When issuing such a warrant, the judge may also require that the intended witness be held in custody until the witness appears to give evidence or produce material, or may set recognisance terms to secure attendance and release the witness on entering into that recognisance (s 13(3)). If arrested under such a warrant, the witness may be released on entering into the recognisance the judge has specified; refusal to enter recognisance may mean the witness is held in custody until giving evidence or producing material (s 13(4)). At the hearing of an application under s 13 the judge may inform himself or herself in any manner thought fit (s 13(2)).

Court discretionary measures affecting entitlement to expenses

• The Court may deprive a witness of all or part of the amount payable under s 17 where the Court has reason to believe the witness attempted to evade service of the final notice, failed to appear in obedience to the notice or recognisance, or where the witness’s conduct or demeanour is, in the opinion of the Court, unsatisfactory or improper (s 17(5)). The Court may also reduce a certified amount if it considers it excessive (s 17(6)).

Procedural enforcement tools and regulation-making

• The Act abolishes subpoenas in criminal proceedings (s 18(1)), but anticipates regulation-making to provide procedural detail and to permit the issue of summonses against intended witnesses who fail to comply with notices or recognisances (s 20(2)(c)). The presence of both a statutory warrant power (s 13) and the potential for regulations authorising summonses indicates a layered enforcement architecture.

Constraints on enforcement

• The Act builds in statutory limitations and defences: preliminary notices do not compel attendance until final notice served (s 5(2)); preliminary notices expire after six months (s 7); notices cease on discharge of the accused from all proceedings relating to the offence (s 11); inability to afford reasonable transport is an express defence both to forfeiture of recognisance and to prosecution for failing to attend (s 12(3), s 19(2)); judges must be satisfied that issuing enforcement orders is justified, with scope to consider interests of justice when excusing witnesses (s 14(2)-(3)).

Allocation of enforcement costs and receipts

• Forfeited recognisances are payable to the Crown (s 12(2)), while witness expenses ordered and paid under s 17 are to be paid out of money provided by Parliament (s 17(7)). The Act does not specify other operational enforcement costs, nor does it set fees for applications; those procedural matters are left to be made by regulation or are implicit in Court administration.

In sum, the Act creates both criminal and civil-financial enforcement levers , imprisonment/fine and recognisance forfeiture , together with judicial discretionary control over detention and release, constrained by statutory defences and procedural safeguards.

The Act provides explicit carve-outs and makes consequential references to other statutes and Court processes. Interaction points are statutory and procedural rather than doctrinal in the source text.

Statutory carve-outs and inclusions

• Persons who, under any other Act or law, may not be compelled to attend as witnesses are excluded from the operation of this Act (s 4(a)). Similarly, persons required by writs of habeas corpus ad testificandum or ad respondendum to attend are excluded (s 4(b)). These are explicit cross-references to other legal regimes that preserve privileges or special procedures.
• The definition of criminal proceeding imports provisions of the Criminal Code Act 1924, explicitly including proceedings under sections 357 and 409 of the Criminal Code and applications to single judges or associate judges under the Criminal Code Act 1924 (s 3). The definition also expressly excludes appeals to the Court of Criminal Appeal, clarifying jurisdictional scope (s 3).

Substitution for traditional common-law or other statutory devices

• The Act abolishes the issuance and use of subpoenas ad testificandum and subpoenas duces tecum in criminal proceedings from commencement (s 18(1)). Subpoenas that were in force immediately before commencement remain effective (s 18(2)). This is a direct statutory substitution: the notice, recognisance and warrant regime replace subpoena processes in the criminal context before the Supreme Court.

Interplay with examining justices, certificates and expenses

• Section 17 acknowledges the examining justices process: on production of a certificate from the examining justices before whom an accused was charged that a person gave evidence or was bound by recognisance to appear, that person is entitled to payment of the expenses specified in the certificate, subject to subsections (5) and (6) (s 17(4)). The Act therefore recognises and coordinates with earlier-stage magistrates’ or justice of the peace certification processes for expense entitlement.

Regulatory interaction

• The Governor is empowered to make regulations for procedural matters including service of notices, and the issue of summonses against witnesses who fail to comply (s 20(1)-(2)). This leaves the detailed procedural interface to subordinate legislation and administrative practice, which will determine the practical interaction between this Act and other civil or criminal rules of court.

Administration and Administrative Arrangements Act

• The Act is to be administered by the Minister for Justice and the Department of Justice until provision is made under section 4 of the Administrative Arrangements Act 1990 (s 24). This ties administrative responsibility into the existing machinery for departmental allocations.

Consequential amendments and incorporation statements

• Sections 21-23 state that the amendments effected by this Act have been incorporated into the authorised versions of the Criminal Code, the Evidence Act 1910 and the Justices Act 1959 respectively. Those sections, as framed in the source text, indicate that this Act was intended to work alongside and modify the authorised versions of those key statutes.

Gaps and delegated interaction

• The Act does not detail rules of evidence or privilege, leaving those matters to the Evidence Act and common law; it neither extinguishes peremptory privileges nor creates new testimonial privileges. The Act’s enforcement and payment mechanics are interwoven with budgetary and administrative controls , payment of expenses is from money provided by Parliament (s 17(7)), and forfeited recognisances go to the Crown (s 12(2)) , which interacts with broader fiscal and appropriation regimes.

In short, the Act reorganises the statutory tools for securing witness attendance in criminal proceedings, explicitly displacing subpoena practice in its context, while preserving existing privileges and coordinating with examining justices certificates, with detailed procedural implementation left to regulation and court practice.

The source text includes multiple in-line amendment notations. The Act as presented shows the original structure together with later specified amendments; the sections below record the textual amendments and their cited sources as they appear in the text.

• General commencement and short title: short title is Criminal Procedure (Attendance of Witnesses) Act 1996 (s 1) and the Act commences on a day to be proclaimed (s 2). No amendment notation is attached to these sections in the source text.
• Section 3 (Interpretation): Several subsections in the definition of criminal proceeding were amended by No. 29 of 2018, s 26, applied 10 December 2018. The amendments affected the inclusion of proceedings under s 357 or 409 of the Criminal Code, and the inclusion of applications to a single judge or associate judge under the Criminal Code Act 1924, among other refinements (s 3, annotated).
• Section 5 (Preliminary notice to witness): Subsections (1)-(3) are annotated as amended by No. 29 of 2018, s 27, applied 10 December 2018 (s 5).
• Section 10 (Issue of final notice): Subsections (1)-(2) are annotated as amended by No. 29 of 2018, s 28, applied 10 December 2018 (s 10).
• Section 12 (Recognisance to secure attendance): Subsection (1) is annotated as amended by No. 29 of 2018, s 29, applied 10 December 2018 (s 12).
• Section 13 (Issue of warrant for arrest of intended witness): Subsection (1) was substituted and subsections (3) and (4) inserted by No. 29 of 2018, s 30, applied 10 December 2018; subsection (2) remains and is part of the updated section (s 13).
• Section 17 (Expenses of witnesses): The section carries multiple amendments. Subsection (1) was amended by No. 62 of 2000, Schedule 1, applied 1 July 2001. The whole of subsection (1) was substituted by No. 29 of 2017, Schedule 1, applied 5 September 2017. Subsection (2) was likewise substituted by No. 29 of 2017, Schedule 1, applied 5 September 2017. The remainder of s 17 appears in the consolidated text.
• Sections 21-23: These sections in the source text state that the amendments effected by this Act have been incorporated into the authorised versions of the Criminal Code, the Evidence Act 1910 and the Justices Act 1959 respectively. The text repeats these incorporation statements twice in the source extract (appearing to be formatting duplication in the supplied text).
• Later administration provision: Section 24 assigns administration to the Minister for Justice until an Administrative Arrangements order provides otherwise. No amendment notation is attached to s 24 in the supplied text.

Notes on timeline and application

• Several amendments are explicitly dated in the source: amendments applied 10 December 2018 (No. 29 of 2018 relating to multiple sections), and the s 17 substitutions applied 5 September 2017 (No. 29 of 2017), with an earlier amendment applied 1 July 2001 (No. 62 of 2000) noted for the predecessor version of s 17(1). The Act’s commencement date is to be proclaimed (s 2); the source does not provide the date of initial proclamation.

The source text does not supply legislative history discussion beyond these amendment notations, nor does it provide an Explanatory Memorandum. The amendment notations in the text identify the amending instruments by number and year and give applied dates for the amendments as recorded in the authorised text.

The supplied source text does not enumerate or cite any judicial decisions or litigation that interpret or apply this Act. No cases are named or summarised in the material provided. Therefore, based solely on the supplied text, there is no litigation history recorded within the Act extract to summarise.

Practitioners should note that the Act contains several provisions likely to generate substantive legal argument in litigation , for example, the scope of “reasonable grounds” for issuing a warrant under s 13, the application of the “in the interests of justice” test under s 14, the standard for “reasonable cause” and “all steps reasonably available” in s 19, and the operation of the transport-cost defences in s 12(3) and s 19(2) , but the source provides no case law or judicial interpretation to guide doctrinal application. Any reliance on statutory terms will therefore require careful attention to subsequent judicial decisions, rules of court and regulations made under s 20, which are not included in the supplied text.

Because the source does not provide litigation history, users of this note should treat the statutory provisions as the starting point for legal research and seek out reported decisions, practice notes and any relevant rules of court or regulations to understand how courts have interpreted key thresholds, procedural requirements and the exercise of judicial discretion under the Act.

This Act contains a number of provisions that can cause practical traps for parties and witnesses if their mechanics are misunderstood. The points below are drawn directly from the text of the Act and identify where practice can diverge from intuitive expectations.

Preliminary notices do not compel attendance

• Misreading a preliminary notice as an obligation to attend is a common procedural error to avoid. A person served with a preliminary notice is not required to attend as a witness until served with a final notice (s 5(2)). A party relying on a preliminary notice alone may therefore find the witness under no statutory obligation to appear.

Service and timing obligations fall on the applicant

• The Act places the duty to cause service of preliminary and final notices on the person who applied for the notice, with service required “as soon as practicable” after issue (s 5(3), s 10(2)). Failure by the applying party to effect timely service may mean the witness is not under a statutory obligation, even if the Registrar has issued the notice.

Six-month expiry of preliminary notices

• Obligations arising from a preliminary notice cease on expiration of six months after the date it is served (s 7). If a party assumes a preliminary notice remains effective indefinitely, late service of a final notice or delay in conducting proceedings can invalidate the intended effect of the preliminary notice unless a final notice is timely served.

Abolition of subpoenas but possibility of regulation-created summonses

• The Act abolishes criminal subpoenas (s 18(1)) but also contemplates regulations authorising the issue of summonses against intended witnesses who fail to comply (s 20(2)(c)). Practitioners should not assume subpoena practice continues unaltered; check regulations and practice directions implementing the Act.

Abolition of conduct money does not remove expense entitlement, but the entitlement is limited

• Tendering conduct money is abolished (s 16(1)), but the Act creates categories of entitlement to expenses payable by the State in certain circumstances (s 17(1)-(2)). The entitlement is primarily for witnesses who give evidence at the prosecution’s request or are certified by a Crown Law officer, and otherwise depends on Court orders. Parties who previously relied on private conduct money arrangements should review how witness expenses will be funded under the Act.

Recognisance forfeiture and transport-cost defences

• If a recognisance is forfeited for non-appearance, the intended witness may have a statutory defence of inability to afford the reasonable cost of transport (s 12(3)). The same transport-cost defence also applies in prosecutions under s 19 (s 19(2)). How courts construe “reasonable cost of transport” and “all steps reasonably available” is likely to be litigated; the Act provides the defence but not detailed metrics.

Warrant power can be exercised without prior recognisance

• A judge may issue a warrant for arrest whether or not the intended witness has previously entered into a recognisance (s 13(1)). That means arrest-based enforcement can arise without prior financial security. Parties should be alert to the fact that recognisance is not a prerequisite for arrest power.

Day-to-day attendance obligation

• Once served with a final notice, a witness is required to attend on the specified date and from day to day until excused by the Court (s 15). This can impose extended inconvenience and potential costs. While s 17 provides a mechanism for payment of expenses in some cases, entitlement is limited, and the Court may deprive or reduce payments where it finds evasion or unsatisfactory conduct (s 17(5)-(6)).

Judicially wide discretion at application hearings

• When hearing applications for warrants or excusal, judges may inform themselves in any manner they think fit (s 13(2), s 14(4)). That broad discretion increases unpredictability at the application stage and underlines the importance of presenting cogent, admissible material to a judge at the earliest opportunity.

Presidential allocation of administration and regulation-making gap

• Administrative responsibility is assigned to the Minister for Justice pending an Administrative Arrangements order (s 24). Procedural detail and enforcement mechanisms (including summonses and costs) are left to the Governor’s regulations (s 20). Until regulations and administrative practices are in place, parties and witnesses may face uncertainty about forms, service methods and practical enforcement steps.

No case law cited in the source

• The Act’s legal thresholds (for example, “reasonable grounds”, “interests of justice”, “reasonable cause” in s 19) invite interpretation. The source contains no judicial guidance, so practitioners must seek subsequent authority and local practice directions to avoid procedural missteps.

In short, the principal operational gotchas are timing and service requirements, the difference between preliminary and final notices, the limited scope of expense entitlement after abolition of conduct money, the interaction of recognisances and warrants, and the broad judicial discretion at application stages. Each of these follows directly from the statutory text and imposes operational risk if not carefully managed.

This section sets out practical, statute-grounded steps for (A) parties seeking to secure witness attendance, (B) intended witnesses served with notices, and (C) Court administrators or counsel advising clients on payment and enforcement. Each step cites the relevant statutory provision.

A. For applicants seeking to secure attendance or production

1. Identify eligibility and target witness. Confirm you are a party to the criminal proceeding (prosecutor, accused, applicant, respondent, or other party) as specified (s 5(1), s 10(1)).
2. Prepare and file the prescribed-form preliminary notice or final notice with the Registrar as appropriate. The Registrar must issue a notice on application (s 5(1), s 10(1)). Use the prescribed forms where regulation or Court practice provides them.
3. After issue, cause service. For a preliminary notice, cause the notice to be served on the intended witness as soon as practicable after issue (s 5(3)). For a final notice, ensure the final notice (which must specify date/time/place and penalties) is served by, or at the behest of, the applicant as soon as practicable after issue (s 10(2)). Service is the trigger for the witness’s statutory obligation to attend (s 5(2), s 15).
4. Include required statements. Ensure the preliminary notice contains the statement specifying duties imposed under the relevant Division (s 8).
5. If enforcement is required, apply to a judge. For recognisances, apply specifying the terms you seek the judge to consider; a judge may require entry into a recognisance in such terms as thought fit (s 12(1)). For arrest warrant, prepare material to show reasonable grounds that the intended witness has failed or is likely to fail to attend (s 13(1)). At the application hearing the judge may inform herself in any manner the judge thinks fit (s 13(2)).
6. If a final notice is served and the witness fails to attend, consider enforcement steps provided in statute and regulations, including application for forfeiture on production of the recognisance (s 12(2)), criminal prosecution under s 19 where appropriate, or seeking a summons under regulations if made (s 20(2)(c)).

B. For intended witnesses upon receiving a notice

1. Read the notice type carefully. A preliminary notice does not require attendance until you are served with a final notice (s 5(2)). A final notice creates an obligation to attend on the specified date and thereafter day to day until excused by the Court (s 15).
2. If changing address or likely to be prevented from attending, notify promptly. For change of residence, employment or business from the address on a preliminary notice, give written notice as early as practicable to the person who caused the notice to be issued, or oral notice if impracticable (s 6(1)). If circumstances arise that will or may prevent attendance, give written notice as soon as practicable or oral notice if impracticable (s 6(2)).
3. If attendance creates hardship or you have grounds for excusal, apply to the Registrar before the hearing to be excused (s 14(1)). If opposed, the Registrar must refer the application to a judge and the judge will consider whether excusal serves the interests of justice, including specific matters listed in s 14(3) such as inability to give material evidence or unreasonable hardship (s 14(2)-(3)).
4. If asked to enter a recognisance, consider financial exposure and defence to forfeiture. Recognisances may be forfeited to the Crown if you fail to appear (s 12(2)), but you have a defence where you show you were unable to afford reasonable transport to the proceeding (s 12(3)). If bound and seeking relief you may show cause before a judge within the time appointed for why enforcement should not be pursued (s 12(4)).
5. If prosecuted under s 19 for failing to appear, preserve evidence of attempts to comply and evidence of inability to afford transport; the statute makes inability-to-afford-transport a defence in such prosecutions (s 19(2)).

C. For counsel and Court administrators dealing with expenses and payments

1. Confirm entitlement categories under s 17. Unless otherwise ordered, persons who give evidence at the prosecution’s request or whom a Crown Law officer certifies as having attended at prosecution request are entitled to expenses (s 17(1)). The Court may also order expenses to any person who attends to give evidence (s 17(2)).
2. Assemble certificates where applicable. Where a person seeks payment under s 17(4) on production of a certificate from the examining justices attesting to attendance or recognisance, ensure certificates are properly executed and available for the Registrar (s 17(4)).
3. Apply for Court orders where entitlement is unclear. The Court may order payment and may reduce or deprive payment where there is evasion, failure to appear, or unsatisfactory conduct (s 17(5)-(6)). Be prepared to argue why an entitlement should be allowed or reduced.
4. Calculate payment under the prescribed scale and make application to the Registrar. The Registrar ascertains amounts payable under the prescribed scale (s 17(3)) and pays amounts to the person entitled or to another person on written order out of parliamentary money (s 17(7)). Check for any regulations setting the scale and payment procedure (s 20(2)(d)).

Administrative and procedural housekeeping

• Check regulations and Court practice directions under s 20. The Governor may make regulations covering procedures, service, summonses for non-compliance and payments (s 20(1)-(2)). Ensure forms, service methods and timing align with any regulations and local court practice, particularly since the Act repeatedly requires service “as soon as practicable” (s 5(3), s 10(2)).
• Monitor time limits for preliminary notices. Obligations arising from preliminary notices cease after six months from service (s 7). If a case is delayed, consider issuing a fresh preliminary notice and ensure final notice service occurs within an operational window that achieves the intended attendance.
• Be attentive to who must do what. The applicant must cause service; the Registrar issues on application; the judge decides recognisances, warrants and excusal under statutory standards (s 5(3), s 10(1)-(2), s 12(1), s 13(1), s 14(2)).

Following these steps, grounded in the statutory references above, will align practice with the Act’s mechanics and minimise procedural risk arising from misinterpretation of preliminary versus final notices, recognisance and warrants, and expense entitlement procedures.