A witness is someone who knows facts relevant to a case. A witness might be asked to give opinion evidence as expert in a subject.
In criminal trials, witnesses may be required to give evidence by the prosecution (the side bringing the charge to court), or by the defendant (or his/her lawyer). The information given to the court by a witness is recorded as evidence and used to make a judgment in the case.
In the Magistrates Court, criminal matters are usually prosecuted by the police. The police ‘Witness Scheduling Unit’ arranges for prosecution witnesses to attend at court.
Attending court as a witness or attending a hearing related to an alleged crime committed against you, a family member, friend or anybody can be intimidating.
The following information will explain the court process, your rights and additional services that can be offered.
Victims of crime and other prosecution witnesses will generally be contacted by the police if they are required to attend court as a witness.
When you arrive at court, check the case list to find out which courtroom the case is in. When you have located the nominated courtroom, 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 called to give your evidence. Note that the process for a victim or vulnerable witness to give their evidence may be different, as the aim is to protect them from the defendant.
When it is time for you to give your evidence, you will be asked to stand in the witness box. First, 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, Koran or appropriate item 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/Allah etc)?”
to which you reply,
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 (i.e. if you are a witness for the prosecution, the prosecutor will ask you questions, or if you are a witness for the defence, the defence lawyer will ask you questions). The Judicial Officer 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, i.e. 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.
Relationships Australia – rebuild – Counselling for Victims of Crime
- Under 16 years of age
- Has an intellectual disability
- Victim of an alleged sexual offence
- At some special disadvantage.
For more information about vulnerable witness provisions refer to protection of witnesses or contact the Sheriff’s Office. To apply for vulnerable witness provisions, you must speak to the prosecutor assigned to the case for which you are appearing in court.
Courts in South Australia are able to accommodate access and other special needs (for example, hearing or visually impaired) of victims of crime and prosecution witnesses who are required to appear in court. Victims of crime wanting to attend court, without being required to appear as a witness, might also be accommodated. Requests to accommodate special needs of victims of crime prosecution witnesses will need to be made in advance.
For further information or assistance refer to the prosecutor assigned to the case for which you are attending court or contact the relevant Court.
If you have suffered as a result of a crime you may be entitled to make a claim for the injuries sustained. Visit Relationships Australia Counselling for Victims of Crime for further information.
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, it is up to the party calling you to cover your expenses.
In most courts victims of crime and prosecution witnesses can access a private waiting area. Access to the private waiting area will need to be arranged in advance to check that it is available. To arrange a private waiting area contact the court in which your case will be heard.
For further information or assistance refer to the relevant Court Registry.
If you are concerned about your personal safety when attending court, including the limits of your intervention or restraining order, contact Victim Support Service or consult with the Sheriff’s Office in the court you will be attending.
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).
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
- serious harm of a material, emotional or psychological nature to the prospective witness