A witness is a
person who has information which may be useful in
a case being heard in a Court. This information is
called evidence. Giving evidence is sometimes called
testifying.
You may be asked to be a witness
in the Federal Court of Australia 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’.
The Court has published a document
entitled "Guidelines
for expert witnesses" that are intended to assist
experts to understand in general terms what the Court
expects of an expert witness giving opinion evidence.
How will I be notified?
Usually the lawyer for the person
who wants you to give evidence will contact you to tell
you when you need to come to Court. If the person does
not have a lawyer they will contact you themselves. You
should let them know if you will be unable to attend
because of other commitments such as medical treatment
or holidays.
If you become ill or some other
emergency happens on the day you are supposed to be coming
to Court you should contact the person or the lawyer
who wants you to give evidence as soon as possible.
If you refuse to come to 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 come to Court on a particular date. It
is an offence to disobey a subpoena. If you do not come
to Court you may be arrested. You may also be charged
with contempt.
How should I prepare for the
hearing?
The people who are involved in
the case are called parties.
One or more of the parties will
probably 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 will be asked at the hearing.
It also gives you an opportunity to ask questions. You
are not legally required to do this if you do not want
to.
You should make sure you have
the correct details of the date, time and place of the
hearing. Street addresses, maps and contact telephone
numbers are available in the 'Contacts'
section of this site. Organise any papers about the case
that you have and bring them to Court so that you can
refer to them easily if necessary.
All Federal Court buildings have
wheelchair access. Each Registry
also has TTY facilities and courtrooms with hearing
loops to assist people who have hearing disabilities.
You may need to wait some time
before being called to give evidence. You can have a
friend attend Court with you to keep you company.
Many people have never been into
a courtroom before. It is a good idea to visit the Court
before the case to see where the hearing will take place.
A virtual tour
of a typical courtroom is available for viewing at
this site.
Courts are usually open to the
public and you can watch other cases to get some idea
of the way the Court functions.
If you have any problems with
understanding or speaking English, with reading, poor
eyesight or any health issue which affects your mobility,
you should tell the person or the 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 the 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.
What to expect when
you attend Court
You should arrive at least half
an hour before the time you are due to give your evidence.
You will find a list of cases
being heard that day on a notice board at the Court.
When you find the courtroom where the case will be heard,
tell the court officer that you have arrived.
You should then find the person
or the lawyer who asked you to come to Court. You may
be told approximately what time you will be giving evidence.
You should then wait somewhere where you cannot hear what is going on in the
Court. 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 Court
building for any reason, let the court officer know where
you can be found.
You will give your evidence from
the witness box,
which is near the desk of the court officer.
The Judge is referred to as ‘Your
Honour’.
Do I have to take an oath?
When it is time for you to give
your evidence, the court officer will show you 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. Your evidence will be considered
in the same way regardless of the choice you make.
You will then be handed a card
which has the oath on one side and the affirmation on
the other. 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.
If you would prefer to have the
oath or affirmation read on your behalf because of poor
eyesight or for any other reason, you need to tell the
court officer this as soon as you arrive. The Court also
requires at least 24 hours’ notice of any other
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. Tell this to the person or lawyer who has
called you as a witness.
What is an affidavit?
An affidavit is a written statement
of evidence which the witness has sworn or affirmed to
be true. You will probably be asked to make an affidavit
before you attend the Court.
An affidavit must include:
your full name, address and
occupation; and
full details of your evidence.
A lawyer can help you make your
affidavit but it must be in your own words. An affidavit
must be sworn or affirmed before a person such as a justice
of the peace or a legal
practitioner.
Giving written evidence rather
than oral evidence in the witness box, saves a lot of
time.
Your original affidavit will
be on the Court’s file and both parties will have
copies. You may also have a copy.
How will I give my evidence?
If you have made an affidavit,
the person or lawyer who asked you to come to Court 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.
Sometimes, even when a witness’s
evidence is in affidavit form, a lawyer or person involved
in a case may ask the Judge if they can ask you questions
about 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 lawyer or person
who first called you to give evidence may ask to re-examine
you to clarify the evidence which you gave.
What happens in a cross-examination?
Cross-examination is when
a witness is asked questions by the other person or
lawyer in the case. One reason for cross-examination
is to test the witness’ evidence. Another reason
is to obtain evidence which the witness did not give
and which may favour the other person.
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 person or lawyer 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 person or lawyer who called you to give evidence
will ask the Judge to excuse you from staying at Court.
Once the Judge gives permission, you are free to leave
the Court or to stay in the public gallery.
The evidence that you have given
is publicly available (except in rare situations) and
you can tell others what evidence you have given.
However, it is important not
to discuss your evidence with someone who has not given
their evidence yet so that there is no suggestion that
that person’s evidence has been influenced by discussions
with you.
Can I claim my expenses?
You are entitled to be compensated
for costs and loss of earnings which you have incurred
as a result of coming to Court. This is the responsibility
of the person or lawyer who has called you to give evidence
and should include:
any cost of travelling to
and from the Court;
the cost of overnight accommodation
(if necessary);
a reasonable amount to compensate
you for any wages or income you may lose when you attend
the Court; and
if you are an expert witness,
payment for the time you have spent preparing a report.
