R v Chambour; R v Khallouf (No 3)

Two appellants, Chambour and Khallouf, faced criminal charges in the District Court of New South Wales. The Crown sought to compel the attendance of a witness, Christopher James Pattison, to give evidence in their trials. The Crown argued that Pattison was unavailable to give evidence and sought to rely on a subpoena that had been served on him. Pattison had failed to appear in court, and the Crown sought to enforce the subpoena through alternative relief under the Evidence Act 1995. The legal issues before the court were whether the District Court Act 1973 mandated the use of a Supreme Court Prescribed Form 74AC for subpoenas, whether the service of the subpoena by post was sufficient, and whether the Crown could prove the unavailability of the witness without attempting to enforce the subpoena.
The court found that the District Court Act did not mandate the use of Supreme Court Form 74AC for subpoenas in the District Court. It also found that the service of the subpoena by post was sufficient. However, the court held that the Crown could not prove the unavailability of the witness without attempting to enforce the subpoena. The court noted that the Crown had not attempted to enforce the subpoena, and therefore, it could not be said that the witness was unavailable. The court also found that the application for alternative relief under the Evidence Act was not made in accordance with the requirements of the Act.
The court dismissed the application for alternative relief under the Evidence Act 1995, s 67, and issued a warrant for the arrest of Christopher James Pattison pursuant to s 194(1)(b) of the Evidence Act 1995. The warrant required Pattison to attend court to give evidence. The court held that the warrant was necessary to ensure that Pattison attended court to give evidence and that the Crown had a right to call him as a witness in the trial. The court emphasised that the issuance of the warrant was not a finding that the witness was unavailable but rather a means of enforcing the subpoena and ensuring that the witness attended court.