Tuesday, 29 June 2021

This factsheet aims to be used as a guide to answer common questions you may have as a witness attending court for the first time.

Before attending court

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 receive one of these subpoenas, you must attend court. If you fail to do so, you can be arrested and bought before the court.

The court usually commences sittings at 10am. The subpoena may require you attend court at 10am, however, the case in which you are called may not commence until after 10am. You should wait in your designated area until you are called.

Prior to the hearing date, you should provide the relevant solicitor with your contact telephone number so they can advise you the approximate time that you will be required to give evidence

Witnesses’ expenses

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.

Let the lawyer who contacted you know if this is the case. Provide the amount that you have lost in wages or the amount of expenses you have incurred in attending court.

Remote Rooms

In some matters such as sexual assault or family violence, witnesses will automatically be allowed to give their evidence remotely.

If you are a witness who wants to/needs to give your evidence remotely then the solicitor who is assisting you will need to apply to the court. If this is the case, you should advise them ahead of time.

You can also arrange to tour these rooms before your hearing.

Attending court

Once you have arrived at court and found out which court your matter is in, you should advise the court clerk or the relevant solicitor that you have arrived. Then, proceed to the waiting area outside the courtroom, or in a witness waiting room, until you are called in to the courtroom to give your 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.

It is vitally important that you do not discuss your evidence with other potential witnesses before, during or after your court hearing as this could affect the case.

For more information on what to do, say and wear when attending court please consult the ACT Courts website.

During the hearing

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. Do not be discouraged if your side of the story is contested. 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 a Registrar or Associate Judge in the Supreme Court, who should also be referred to as ‘Your Honour’. In the Magistrates Court, the magistrate should also be referred to as ‘Your Honour’.

The judge, registrar or magistrate is a neutral umpire — 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. You should follow their directions at all times and ask for clarification as necessary.

How are facts established in a court room?

The parties each produce evidence to establish a given fact. Evidence consists of the testimony of a sworn witness (such as yourself) 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.

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 When taking the oath you must stand and place your right hand on a religious book (if you require a holy book other than the Bible, please advise the prosecutor prior to the court date). The court officer will hand you a card with the wording of the oath and you will be asked to read it aloud. Wording of an oath may include:

“I swear by Almighty God that the evidence I shall give will the be truth, the whole truth, and nothing but the truth”.

Alternatively, if you do not wish to take the oath, you may take an affirmation which does not use a religious book. Wording of an affirmation may include:

“I solemnly declare and affirm that the evidence I shall give will be the truth, the whole truth, and nothing but the truth”.

The judge or magistrate will probably ask you to sit down while your evidence is taken.

What is your role in the hearing?

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.

Answering questions

It is very 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 give more information than what 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 may 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.

Remember:

  • Take your time — think carefully before you answer a question;
  • Direct your answers to the Judge or Magistrate;
  • Speak as clearly as you can;
  • if you don't understand the question, you can say so or ask for the question to be repeated;
  • if you don't know the answer to a question, you can say so;
  • only answer the question and don't go into unnecessary explanation;
  • if you become distressed, you can ask for a break;
  • remember to keep breathing and have a sip of water if needed

Settlement

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.

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