A witness is usually someone who has knowledge of facts which are pertinent to a case coming to trial before the court. A witness may also give opinion evidence of matters of an expert nature or may be called to give evidence of the character of the person charged with an offence. The information given to the court by a witness is recorded as evidence, which is used by the magistrate to make a judgment in the case.

In criminal trials, witnesses may be required by the prosecution (the side bringing the charge to court), or by the defence (the person charged and his/her lawyer). In the Magistrates Court, criminal matters are usually prosecuted by the police. The police Witness Scheduling Unit arranges for the attendance of prosecution witnesses at court.

In civil trials, witnesses may be required by the plaintiff (the side bringing the action to court) or the defendant (the person defending the action).

A person who is unwilling to attend court as a witness may be summonsed to appear in court. If a summons to witness is disobeyed (ie the witness does not attend court), the court may order a warrant to be issued to bring that person to court.

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What to expect if you have to attend court as a witness

You should attend the court on the date and time as arranged with the party requesting your attendance (or if you were served with a summons, on the date and time specified in the summons). Firstly, look at the case list to find out which courtroom the case is in. The case list is a list of cases which are listed before the courts that day. The list is usually displayed in the court waiting area - if you can’t find it, ask at the information counter or court registry counter.  Case lists are also available on this website.  Click here to see today's list.

When you have found the courtroom the case will be in, tell the Sheriff’s Officer in that courtroom who you are and why you are there. Then take a seat and wait until you are required to give your evidence.

When it is time for you to give your evidence, you will be asked to stand in the witness box. Firstly, you will be sworn in. This means you must take an oath, or make an affirmation, to tell the truth. The most common form of oath will require you to hold the Bible while a court officer asks you,

"Do you swear that you will tell the truth, the whole truth and nothing but the truth, so help you God?"

to which you reply,

"I swear."

Or you can choose instead to make an affirmation, in which case you will be asked to say;

"I [your name] do truly and solemnly declare and affirm that my evidence will be completely truthful."

Perjury (giving evidence you know to be false) is a serious criminal offence.

After you have been sworn in, you will be asked questions by the party who requested your attendance (ie if you are a witness for the prosecution, the police prosecutor will ask you questions, or if you are a witness for the defence, the defence lawyer will ask you questions). The magistrate may also ask you questions while you are in the witness box. You should try to answer all questions as clearly and simply as possible.

When you have finished giving your evidence, the other side may cross-examine you, ie they may ask further questions about the evidence you have just given.

The amount of time you will have to spend in court depends on the nature of the trial and where you fit in as a witness. Some trials can be over in an hour or two; others can take days, weeks or months. You may be required to attend court again on subsequent dates to give more evidence.

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Witness fees

If you are a witness for the prosecution in a criminal trial, you are entitled to claim witness fees. You can claim for loss of wages for attending court and for travelling expenses. The Sheriff’s Officer will help you to fill out a claim form. A cheque will be prepared by court staff, and sent to you in the mail.

If you are a witness for the defence in a criminal trial, or for a party in a civil trial, it is up to the party calling you to cover your expenses. If they win their case, they can claim witness expenses as part of the costs of the trial.

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Protection of witnesses

Sometimes special arrangements can be made for taking evidence from a witness in order to protect that witness from embarrassment or distress, or to protect him or her from being intimidated by the atmosphere of a courtroom, or for any other proper reason.

The court may, for example, make orders of the following kinds:

• an order that the evidence be given outside the courtroom and transmitted to the courtroom by means of closed circuit television;
  

• an order that a screen, partition or one-way glass be placed to obscure the witness's view of a party to whom the evidence relates or some other person;
  

• an order that the witness be accompanied by a relative or friend for the purpose of providing emotional support. (This applies to young children as witnesses also).

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Interpreters

Non English speaking witnesses are entitled to an interpreter. The court will arrange for this on application by the party requiring the witness. If you require an interpreter you should advise the listings section of the court registry at which you are to give evidence well in advance of the hearing.

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Spouse or close relative as a witness

In civil proceedings, close relatives (ie spouse, parent or child) are both competent (able) and compellable (can be made to) give evidence on behalf of any party.

In criminal proceedings a close relative of a person charged with an offence is both competent and compellable to give evidence, except that they may apply to the court for exemption from the obligation to give evidence against the accused.

For a court to grant exemption, wholly or in part, from the obligation to give evidence against the accused, it must be satisfied that, if the prospective witness were to give evidence against the accused, there would be a substantial risk of:

• serious harm to the relationship between the prospective witness and the accused; or
  

• serious harm of a material, emotional or psychological nature to the prospective witness.

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Any further questions?

Contact the Magistrates Court One Stop Information Call Centre on 61 8 8204 2444.

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