If you have to go to court as a witness, you probably have questions about what happens, and how to be a witness. These notes are designed to answer those questions and act as a guide to those people who are required to attend court for the purpose of giving evidence.
The fact finding process
The central concept in our court process is that it is an ‘adversarial process’. This means that a court hearing consists of a contest between two sides, each contending for a different view of the facts. The underlying philosophy is that it is through the waging of such a contest, with each side putting forwards its own version of the facts and testing the opposing side’s version of the facts, that the truth will emerge. As a witness, you assist the court by telling what you know.
Role of the judge or magistrate
In the Supreme Court the presiding officer is the judge and should be referred to as ‘Your Honour’. You may also have your matter heard by the ‘Master’ in the Supreme Court. In the Magistrates Court the presiding officer is the magistrate and should also be referred to as ‘Your Honour’.
The judge, master or magistrate is essentially a neutral umpire — they stay dispassionately above the fray. Their role is to ensure that the hearing is conducted according to the established rules of evidence. It is for them to decide what evidence is admissible and to decide the applicable law.
How are facts established in a court room?
The parties each produce evidence tending to establish a given fact. Evidence consists of the testimony of a sworn witness and also consists of physical things such as a photograph or a document. These physical things become evidence by virtue of:
- being produced in court and having a person — a sworn witness — testify as to the nature, relevance, etc, of these physical things; or
- agreement between the parties in some circumstances.
A statement or item may only become evidence if it is relevant and otherwise admissible according to the rules (or laws) of evidence.
Subpoena or summons to give evidence
A subpoena or summons to give evidence is an order of the court requiring you to attend court. If you fail to do so, the court has the power to have you arrested and brought before it.
The subpoena or summons will usually require you to attend at 10am on the day of the hearing. The court will usually commence sittings at 10am. However, as the majority of courts have a number of cases to hear each day, the case in which you are called may not commence until after 10am.
Prior to the hearing date, you should provide the solicitor who issued the subpoena or summons with your contact telephone number. The solicitor may then be able to advise you a day or so before the hearing of the approximate time that you will be required to give evidence.
You should wait outside the courtroom until your name is called. If you see the solicitor who issued the subpoena or summons you should tell him that you are ready to give evidence.
There is a strict rule of all courts that witnesses should wait outside the court until they are called to give their evidence. It is important that witnesses do not hear the evidence given by other witnesses so that they are able to give their own account of the events without being influenced by the evidence of other witnesses.
If you have lost wages or incurred expenses in attending court, you are entitled to claim these as witnesses’ expenses from the party who issued the subpoena or summons against you.
You should inform the solicitor who has issued the subpoena or summons of the amount that you have lost in wages or the amount of expenses you have incurred in attending court.
Oath or affirmation
When it is time for you to give evidence, your name will be called outside the courtroom by a court officer. You will then be taken inside the court and up to the witness box. At this stage you will be required to take either the oath or affirmation.
When taking the oath you must stand and place your right hand on the Bible. The court officer will hand you a card with the wording of the oath and you will be asked to read it aloud.
Alternatively, if you do not wish to take the oath, you may take an affirmation.
The judge or magistrate will probably ask you to sit down while your evidence is taken.
What will happen?
Your story is told to the court when you answer questions. You are not expected to tell your story on your own. The questions will be asked in three stages.
The barrister or solicitor acting for the party who has called you will ask you a number of questions. This is referred to as examination in chief. Usually you will have discussed this with the barrister or solicitor beforehand and will know the type of questions that will be asked. These questions will be framed to give your account of the facts.
When the barrister or solicitor acting for the party who has called you has finished asking questions, the barrister or solicitor for the other party will ask you questions. This process is known as cross-examination and is designed to examine thoroughly your knowledge or recollection of events.
The final stage is called re-examination and the barrister or solicitor acting for the party who has called you has an opportunity to ask you further questions. The purpose of these questions is to clear up any misunderstandings which may have arisen as a result of an answer given in cross-examination.
It is most important when giving evidence to listen carefully to the question asked and answer that question directly and as briefly as possible.
In cross-examination you should only answer the question which is asked. There is no need to volunteer more information that the question requires. If the crossexaminer wants further information, they will ask you another question.
During cross-examination remember that you do not have to answer ‘yes’ or ‘no’ to a question unless that is the complete answer to the question. If you do not understand a word or a question ask the judge or magistrate for an explanation. If you are certain of the answer, give the answer confidently. At the completion of your evidence, the judge or magistrate will probably excuse you from further attendance.
You may at that stage leave the court or you may sit in the gallery at the back and view the proceedings.
- Take your time — think carefully before you answer a question.
- Speak as clearly as you can.
Many cases are settled on the morning of the hearing or during the course of the hearing. In that event, your evidence may not be required and the solicitor will tell you if this happens. The fact that your evidence has not been taken does not mean that your attendance has been a waste of time. Often, your presence will be a reason why the case has settled.
This publication is intended as a simple guide. It is not, and must not be taken to be, legal advice. For legal advice please consult a solicitor. While every care has been taken to ensure the accuracy of the information contained in this publication, the ACT Law Society does not make any representations or warranty as to the accuracy of the material in the publication. The publication has been written according to the applicable laws in Australia relevant to a resident of the Australian Capital Territory as at September 2011.