Witnesses and evidence    

 

A witness is a person that has seen or has information about an event or issue that a court is making a decision about.   

If you have been asked to attend court as a witness and you have a concern about the evidence you will be asked to give, you should consider getting legal advice

You cannot refuse to be a witness. A person that has been given a subpoena to attend a court to give evidence must comply with the subpoena. A court can issue a warrant for the arrest of a witness who does not attend.

Image of two people as illustration of witnesses.  

How can you prepare?

If you have been asked to be a witness or received a subpoena to attend court as a witness there are some things you can do to help you prepare.

First, find out who's who in the courtroom

If you have made a statement or affidavit in the case, you should read it again before you go to court. You cannot use your notes while giving evidence unless the judicial officer allows it.   

Make sure you do not discuss your evidence with anyone before or during the case.  

You are allowed to bring a support person to court if you want to. This can be a family member, friend, professional counsellor or person from an assistance program. A support person cannot speak on your behalf but they can be in the courtroom with you on the day.

Find out more about support services for witnesses.

Remote witness facilities

Some courts have a room that is separate to the courtroom that witnesses can use to give their evidence. This is called a remote witness room.  

CCTV cameras are used in the courtroom to see the witness in the remote witness room. The witness can see the judicial officer and the lawyers on screens in the remote witness room.   

An application to use a remote witness room for a vulnerable witness must be made before the day of the hearing. The party bringing the witness must make a written application which is considered by a judicial officer.

Arriving at court

When you arrive at court, find the courtroom where your case will be heard. You will need to find the person who subpoenaed you (for example the police officer in charge), who will tell you where to wait until called. 

In some court complexes, like the Downing Centre in Sydney, there are special places where witnesses can sit while waiting to be called into court.

Witnesses are not permitted in the courtroom until it is their turn to give evidence. This is so they do not hear the evidence of other witnesses.

Make sure that you do not discuss the case while you are waiting to be called.

Swearing an oath or affirmation

Each witness who is called into court is asked to take an oath or affirmation. This is a promise to tell the truth.

Taking an oath requires you to hold a religious book, such as the Bible or Koran, while promising or swearing to tell the truth.  

If you are not religious you can make an affirmation instead.

Giving evidence

Witnesses sit in the witness box, which is usually at the front of the courtroom. 

When giving evidence, you will need to answer questions from each of the parties and sometimes by the judge or judicial officer.

There will be many microphones in the courtroom. The microphones are there to clearly record each person speaking in the courtroom.  

Do not worry about using a microphone. When giving evidence, you do not need to get too close to the microphone. Just speak clearly and loud enough for all to hear.  

Order of proceedings

Witnesses are asked questions by each party. The first party to ask questions is usually the person that asked the witness to attend. This first part of the evidence is called "evidence in chief".

Then the other party has the opportunity to ask questions about the evidence given. This is called cross examination. Further questions by the first party are sometimes allowed and this is called re-examination. The judge or judicial officer can also ask questions.

If you are asked a question that you do not understand, or you are unsure about, you can ask for the question to be repeated. Your role is to tell the truth as best you can.

You may also hear parties say "objection" to something that you have said. When a party objects, just stop talking while the judicial officer decides on the objection.  

Expert witnesses

These are experts in a particular field, such as psychiatrists or structural engineers, who may be asked by the court to give  expert opinions. 

Can you get paid?

Payment for attending as a witness should be discussed with the person asking you to attend or who issued the subpoena. There are different rules regarding witness expenses depending on the type of case before the court.

If you have been called as a Crown witness or witness for the defence in a criminal trial in the Supreme Court or District Court, you can claim an allowance for fees, loss of income or salary, meals and transport. These are the latest allowances [PDF 40kb] for Crown witnesses and expert witnesses.

Public servants are generally not entitled to witness expenses, as they are paid as if at work that day. A public servant who is giving evidence needs to obtain a certificate of attendance from the court registry to give to their employer to ensure wages are paid.

Public servants who are giving evidence in their private capacity will need to arrange leave to do so.