What You Need to Know About Being a Witness in Court

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If you have received a subpoena, this means that you must attend court on the day of the hearing.

This may mean taking the day off work and/or arranging childcare.

Failure to attend is a criminal offence and a warrant may be issued for your arrest or you may be charged with contempt of court.

The court process may be unfamiliar but you will be guided by your lawyer if you are a defendant, or by the prosecutor if you are a prosecution witness.

If you are a complainant (ie alleged victim), going to court can be especially stressful if you have to face the person who victimised you. However, there are several support services available such as the Witness Assistance Service.

The Lawlink website publishes information, videos and a phone hotline number designed to assist those who are going to court including information about special services for children, Aboriginal and vulnerable victim witnesses.

On the day

Make sure you arrive at court in plenty of time, but also be prepared to do lots of waiting.

Ensure that you bring any documents that your lawyer or the prosecution has asked you to bring.

If you are a witness called by the prosecution, you will get paid witness expenses.

These include travel expenses and other costs are paid to witnesses to help cover your travel costs, an allowance to help cover loss of earnings and food expenses on the day, as well as during your travel to and from court.

When you get to court, look for the person who subpoenaed you – for example a police officer. They will tell you where to go.

Until it is your turn to give evidence, you must wait outside the courtroom so that you do not hear the testimony of other witnesses. Also make sure not to discuss the case with other witnesses.

You may also get a support person to come with you but they may not be allowed inside the courtroom while you give evidence.

When you are in the courtroom, refer to the magistrate or judge as ‘Your Honour.’

Before you give your evidence, you will need to swear an oath or affirmation to tell the truth. A failure to tell the truth in court is known as perjury and is a very serious offence.

You will usually give your testimony in open court, in front of the magistrate or judge, lawyers, defendant and people sitting in the public gallery.

However in certain cases, including those involving sexual offences, you may not actually be inside the courtroom when giving your evidence.

Remote witness facilities may be available, meaning that you give your testimony from a separate room in the presence of a support person.

This can be beneficial for victims of crimes who do not wish to come face to face with their attacker.

Children and vulnerable persons, including complainants in sexual assault cases, are entitled to give evidence via remote witness facilities.

Applications to give evidence via remote facilities in other cases must be made in advance, and in writing.

On the witness stand

The most important thing to do on the witness stand is to ‘listen carefully to the question and answer that question only’.

When conferencing a witness or defendant, I sometimes show them a black pen and ask:

‘Do you know what colour this pen is?’

Most people will answer, ‘black’.

The correct answer is, ‘yes’.

Of course, the following question may be, ‘what colour is it?’.

The point is to carefully listen to the question and answer that question as accurately and concisely as possible.

By the time a case reaches the court, considerable time may have passed since the offence and your memory may have faded.

There is nothing wrong with ‘refreshing your memory’ by looking at your statement in the days leading up to the hearing.

But a defence lawyer or prosecutor may ask you about this and you must always be honest.

Also, it’s a good idea not to discuss the case with anyone else as it may be put to you that the evidence has been made up.

And you must never discuss the case during any breaks in your cross-examination; for example, during a lunch break when you are a complainant and are being asked questions by a defence lawyer.

Also, do not guess answers – if you can’t remember something, just say ‘I can’t remember’ or ‘I can’t recall’. If you don’t know something, say ‘I don’t know’. There’s nothing wrong with being unable to recall or know everything about events that may have occurred long ago.

As a witness you may be examined by the prosecution, the defence, or both.

In addition to ordinary witnesses, or witnesses ‘of fact’, sometimes expert witnesses are called to give evidence in court.

Witnesses of fact are there to testify what they saw happen; the ‘facts’ of the case. In contrast, expert witnesses were not necessarily present at the time of the alleged offence but are giving evidence of another kind. Expert witnesses by virtue of their specialised training, study or experience and they may include people like doctors, nurses or handwriting experts.

While you don’t need to have a lawyer to be a witness, if you have any concerns about giving evidence in court, you may wish to get legal advice so that you are fully prepared for the day.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney’s Leading Firm of Criminal & Traffic Defence Lawyers.

One Comment

  1. Don

    I’ve been subpoenaed to go to court against a neighbours son as has my sister who was the main victim. Will the defendant be present?? As far as I know he is in prison at the moment. I’m rather nervous about being in the same room as the guy is not the nicest person. I’m also worried of backlash if he is released especially if we give evidence

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