Application Against Witness Summons

Melbourne Magistrates' CourtThis is a case study on an application against witness summons.

Our client had been interviewed by the police some years ago in relation to an alleged fraud. His father was charged with significant fraud offences arising from the same allegations, and our client was requested by the police to make a statement against him. He declined.

The client was then served with an order under section 103 of the Criminal Procedure Act requiring his attendance at court for a compulsory examination to answer questions in relation to the charges against his father.

Dr. Michael Fitzgerald represented the client at the Melbourne Magistrates’ Court for the witness summons.

An application was filed by our office with the court seeking that the order to examine our client be set aside for a number of reasons, in particular that he had previously been interviewed as a suspect in relation to the charges, and that he had participated in a full record of interview. In those circumstances, it was submitted by Michael that it was not appropriate that our client be exposed to compulsory examination.

Prior to examination, an objection was then raised on behalf of our client under section 18 of the Evidence Act as to whether our client should be compelled to give evidence against his own father. Our client gave evidence to the court that his compulsory examination would have a significantly detriment effect on his relationship with his father.

Following evidence from the client and Dr. Michael Fitzgerald’s submissions to the court on his behalf, our client was excused from giving evidence at the compulsory examination and all other future criminal proceedings against his father, which is ultimately the desired outcome.


Dr Michael FitzGeraldDr Michael FitzGerald

Michael is one of Doogue + George's accredited criminal law specialists. He was both admitted to legal practice and became a Doctor of Philosophy in 2011. Michael is an experienced jury trial lawyer who has dealt with matters related to Royal Commissions and the Australian Crime Commission. He is particularly skilled in defending drug, fraud, and conspiracy cases.

Michael completed his Bachelors degrees from the University of Melbourne and graduated with honours in Arts and Law in 2003. He has been giving lectures on various legal disciplines with a focus on criminal law, criminal procedure, evidence and sentencing.

Click here to view Michael's complete profile.

DISCLAIMER: This is a real case study of an actual case from our files. Details pertaining to the client have been changed to protect their privacy. The sentence imposed and the charge have not been altered. These case studies are published to demonstrate real outcomes and give an indication of possible tariffs in Court. We do not guarantee a similar case on these charges will get the same result. Please note that we post results at our discretion, therefore while many case studies are average results, others are notable for their exceptional outcomes. PUBLISHED 17/12/2018