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Giving Evidence in Criminal Matters

If you have been summonsed to give evidence in court in a criminal matter, you are required to comply. If you do not attend court in response to a summons, the court may issue a warrant for your arrest. You may also be charged with contempt of court. If some exceptional circumstance (such as a medical emergency), prevents you from giving evidence in court you should contact the court immediately to explain the situation.

You may be summonsed to give evidence in a criminal matter if you saw or heard something relevant to the commission of an offence or if you were involved in some way. You may also be required to give evidence as an expert witness if you have professional expertise relevant to the other evidence being presented. This article outlines what to expect when giving evidence in a criminal matter. 

Reread your statement before giving evidence

If you made a statement to the prosecution or to the defence, you should read over that statement before court to refresh your memory of the events. Try to remember all the specifics you can including dates, times, names and words spoken.

Remember not to discuss your evidence with other witnesses. If you do this it could be used to discredit your evidence or to create an inference that you have colluded with other witnesses.

Before you give evidence the prosecutor and defence lawyers may ask to speak to you. If there is anything you have noticed that is missing from your statement or anything that you think is incorrect, you should inform them.

Courtroom etiquette

Dress neatly and tidily for court. Before you enter the courtroom, make sure that your phone is switched off or on silent and remove any hats and sunglasses. Bow or nod to the court when you enter the court and again when you leave.

Oath or affirmation

When you are called to give evidence, you will be asked whether you want to take an oath or make an affirmation. Whichever option you take, you have the same duties to tell the truth to the best of your abilities.

If you believe in God, you can opt for a religious oath and swear on the Bible that your evidence will be the truth. You can also choose to swear an oath using another scripture such as the Koran.

If you are not religious, you can opt to make an affirmation instead of taking an oath. An affirmation is a non-religious promise that your evidence will be the truth.

Children giving evidence  

If a child is giving evidence, they can make a promise to the court to tell the truth rather than a formal oath or affirmation. A child is a competent witness if he or she is capable of understanding the difference between truth and lies. This can be established by asking the young person questions that are appropriate for their age and level of maturity.

Vulnerable witnesses giving evidence 

Vulnerable witnesses are witnesses such as victims of a sexual assault or persons with intellectual disabilities. If you are a vulnerable witness, you may be able to receive extra help to make giving evidence easier. This may include having a support person accompany you while you are giving evidence or being allowed to give evidence from a room outside the courtroom or from behind a screen so that you do not have to look at the defendant.

If you feel you should be treated as a vulnerable witness, you should speak to the prosecution or the defence so that an application can be made to the court for permission for this to occur. The court will decide whether you should be treated as a vulnerable witness and what steps should be taken to accommodate your needs. 

Giving evidence in court

When you are giving evidence in court, you will be asked questions by the prosecution and the defence. First, you will be required to give your examination-in-chief. This is where the party that called you as a witness asks you to give your account of what you saw, heard or perceived about the events in question. You will then be subjected to cross-examination. This is where the opposing party challenges your evidence and tries to expose any weaknesses or inconsistencies in it.

 You must answer truthfully and as completely as you can. If you do not understand a question or cannot remember something, it is ok to tell the court this. You can take as long as you need to answer the questions. Speak clearly and remain calm.

There are strict rules about what questions lawyers may ask witnesses in a criminal matter. For example, unless you are an expert witness, you cannot be asked to give your opinion except in a matter that is common knowledge. You cannot be asked questions that invite answers that are inadmissible hearsay. If either the defence or the prosecution lawyer asks you a question that threatens to break these rules, the other party may object to the question. This means that your evidence may be interrupted for the lawyers to make submissions to the court as to whether a question should or should not be allowed.

Once you have finished giving evidence, you will be asked to leave the witness box. You may then leave court if you want to or remain to watch the rest of the proceeding from the public gallery.

If you need legal assistance in a criminal matter or in any other legal matter, please contact Armstrong Legal. 

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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