What is a witness?
A witness is a person who has information (called “evidence”) which may be useful in the proceedings of a case being heard in a court. Giving evidence is also sometimes referred to as “testifying”.
You may be asked to be a witness in either the Supreme Court of Tasmania or the Magistrates Court if you have seen or heard about an event which is related to a case and you are able to say how it happened. This is called being a “witness of fact”.
If you have been asked to be a witness because of your specialist knowledge, this is called being an “expert witness”.
Before the Trial
How will I be notified?
You will be notified by the party (person or prosecutor involved in a case) who requires your evidence, or by his or her legal representative, that you are requested to attend the Court as a witness for that party. You should let the party (or her or his legal representative) know if you have prior arrangements, such as a hospital visit or a holiday, which may affect the days you are able to attend.
In the case of criminal prosecution you will receive a witness summons to give evidence about the case. If you do not attend court as required a warrant may be issued for your arrest.
If, on the day you are required to attend Court, you become ill or some other emergency occurs, contact the party (or his or her legal representative) as soon as possible. If you fail to attend without notification, this may cause considerable inconvenience to the Court and the parties involved.
If you refuse to attend the Court as a witness, you may be “served” with a subpoena. This is an order of the Court which tells someone that he or she must attend the Court on a particular date and time. It is an offence to disobey a subpoena and failure to attend the Court may result in arrest. You may also be charged with contempt of court if you disobey a subpoena.
It is likely that one or both of the parties will want to see you before the hearing to go through your evidence. This is useful and will give you an idea of the type of questions you might be asked when you are in the witness box in the courtroom. It also gives you an opportunity to ask questions.
You should make sure you have the correct details of the date, time and place of the hearing. Organise any papers about the case that you have and bring them to court so that you can refer to them easily if necessary.
Many people have never been into a courtroom before. It is a good idea to visit the particular Court before the case to see where the hearing will take place. Courts are usually open to the public and you are entitled to observe other cases to familiarise yourself with the way the Court functions. You may also look at the virtual tour of the Magistrates Court.
If you have any problems with understanding or speaking English, with reading, poor eye sight or any other health issues which affect your mobility, you should advise the party (or his or her lawyer) who asked you to come to court.
Do I need a lawyer?
You do not need a lawyer to appear as a witness in court. However, if you are concerned that the evidence you give may cause you a legal problem, you should see a lawyer before you give evidence.
Witness Information DVD
The DPP has prepared a witness assistance video with information about giving evidence.
During the Trial
When you attend court
You should arrive well before the time you are scheduled to give your evidence. You will find a list of cases being heard that day on a notice board at the Court. You should then find the party you are giving evidence for (or his legal representative). You may be told approximately what time you will be giving evidence.
When you find the courtroom, you should report to the court officer and then wait out of hearing distance from the courtroom. This avoids the possibility that it could be suggested that your evidence may have been influenced by what you have heard others say. If you have to leave the waiting area for any reason, let the court officer know where you can be found.
A courtroom is divided into the Judge’s bench, the Judge’s associate’s desk, the witness box, the “bar table” (where the legal representative or party representing him or herself sits), and the public gallery. You will give your evidence from the witness box, which is near the desk of the court officer, who performs various formal functions during a court hearing. Judges and Magistrates are referred to as “Your Honour” and it is important that you follow this practice if you wish to ask the Judge or Magistrate a question.
The virtual tour of the Magistrates Court shows the layout of a courtroom.
Do I have to take an oath or affirmation?
When it is time for you to give your evidence, the court officer will usher you to the witness box and ask you whether you prefer to take an “oath” to tell the truth or to make an “affirmation” to do so. An oath has religious significance and an affirmation does not.
When people give evidence in court, they are asked to take an oath or affirmation that they will tell the truth. It is an offence to give false evidence in court after taking this oath or affirmation. Your evidence will be regarded in precisely the same way regardless of whether you take an oath or make an affirmation.
The Court will require at least 24 hours’ notice of any arrangements that may need to be made to enable you to take the oath or affirmation. For example, the Court must be notified if you require a holy book other than the Bible. If this is the case, you should inform the party (or his or her legal representative) who has called you as a witness.
An affidavit is a written statement of evidence which the witness has sworn or affirmed to be true. You well may be asked to make an affidavit by the party (or his or her legal representative) before you attend the Court. An affidavit should include:
• your full name, address and occupation; and
• full details of your evidence.
A legal practitioner may assist you to prepare your affidavit. An affidavit must be sworn or affirmed before an appropriate person such as a justice of the peace.
How will I give evidence?
If you have made an affidavit, the party (or his or her legal representative) who has “called” you to give evidence will ask questions to confirm your name, address and the content of your affidavit.
If your evidence is not in an affidavit, you will give it by answering questions which will be asked by the party (or her or his legal representative) who called you.
Sometimes, even when a witness’s evidence is in affidavit form, a party may request permission from the Judge to supplement the affidavit by providing oral evidence on a topic which is not covered, or covered properly, in the affidavit. In this case, your evidence will also be presented through questions and answers.
Sometimes, the party who first called you to give evidence may ask to re-examine you to clarify the evidence which you gave.
What is cross-examination?
“Cross-examination” is when a witness is asked questions by the other party (or his or her legal representative) in the case. One reason for cross-examination is to “test” and reduce the impact of the witness’s evidence. Another reason is to obtain evidence which the witness did not give and which may favour the other party.
There are a number of useful points to remember as a witness:
- You should listen carefully to the whole question, think about it and answer it by saying no more than what is necessary to answer it. It is important not to answer other questions which you think that you might be asked and not to use the opportunity to offer an opinion about the case;
- If you do not hear the whole question or are not sure that you did, ask for it to be repeated. If you cannot understand a question, say so and the party (or his or her legal representative) will try to express it better;
- Try to answer each question truthfully and to the best of your recollection. If you do not remember something or your memory is not good, do not be afraid to say so;
- You should never argue with or try to question the cross-examiner;
- If a question can be answered simply by ‘yes’ or ‘no’, answer it in that way. You should only say more if the question cannot be answered in this way;
- If you have a copy of your affidavit, take it with you into the witness box but do not read it or even open it in front of you unless you are asked to do so;
- If you are feeling ill, tired or distressed and would like a break for a few minutes, ask the Judge;
- All your evidence will be recorded through the microphone in front of you. Gestures, such as nodding of the head are not recorded. Try to speak clearly and audibly at all times so that everything you say will be clearly recorded.
Do I have to stay in court after giving evidence?
Once your evidence is finished, the party (or his or her legal representative) who called you to give evidence will ask the Judge to excuse you from remaining at Court, which will almost always be granted. Once the Judge gives permission, you are free to leave the Court or to remain in the public gallery.
The evidence that you have given is publicly available (except in a rare situation where there has been a ‘suppression order’) and you may tell others what evidence you have given. However, it is important not to discuss your evidence with someone who is yet to give evidence so that there is no suggestions that that person’s evidence has been influenced by discussions with you.
Section 17 of the Criminal Procedure (Attendance of Witnesses) Act 1996 sets out the conditions under which a person attending Court to give evidence in a criminal proceeding is entitled to be paid expenses.
Witness expenses form
From 1 July 2017 the hourly rate payable to non-expert witnesses is $34.86.
Please ask the Crown Prosecutor or the Crown clerk for a copy of the form that allows you to claim witness expenses.
When necessary, the Court can arrange for an interpreter to be provided. If you need an interpreter, please contact the Registry well before the case is scheduled to be heard so that the appropriate arrangements can be made.