If you are a party to proceedings you are entitled to give evidence before the court at hearing or call witnesses in support of your case. Each witness who is not an expert witness is questioned by the party that called them, cross-examined by any other party to the case if they choose to do so, and sometimes re-examined by the party who called them to clarify or resolve any matters arising from the cross-examination.

In the ERD Court hearings are presided over by a Judge, a Commissioner or a Judge and Commissioners together. The role of the judicial officer presiding over the hearing is to ensure that it is conducted fairly and according to law. That role includes the power to decide whether a witness may be permitted to give the evidence or whether a document can be received as evidence. If you have any questions that relate to the hearing process you should ask the judicial officer.

Evidence has to be relevant to the issues in the appeal. If the evidence of a witness or a document will not assist the Court to determine the appeal before it, that evidence will not be received by the Court.

The rules that govern the giving of evidence in South Australia are set out in the Evidence Act 1929. You should also read:

  • Division 2 of the ERDC Act 1993
  • Section 1.3 of the ERDC Rules 2003
  • ERDC Practice Direction No. 6 entitled ‘Guidelines for Expert Witnesses.’

The appellant usually calls the first witness. That witness may be the appellant themselves or someone else. Witnesses should always keep the following in mind when you answer questions in a courtroom:

  • always answer truthfully,
  • always answer a question as directly as you can,
  • only answer the question you were asked,
  • if you don’t understand the question ask for the question to be repeated.

There are restrictions on the way in which a witness can be questioned. When deciding what questions you will ask a witness keep the following concepts in mind:

  • Leading Questions – A leading question is a question that suggests a particular answer or puts words into the witness’s mouth. These kinds of questions will not generally be allowed.
  • Opinion or Suggestions – It is important that evidence is not confused with argument. A witness may not state opinions unless he or she is qualified as an expert in a recognised field of expertise.
  • Hearsay – A witnesses can only speak of things they know through their own observations, not of things told to them by others, and can only speak of things that are relevant to the dispute.

One party may object to a question the other party is asking a witness or the documents the other party wishes to put before the court. If so, the Judge or Commissioner will have to make a ruling as to the admissibility of that evidence. To make an objection you must stand up and voice your objection. The Judge will ask you the reason for your objection. After you have told the Judge, he or she may ask the other side to justify what is being attempted.

There are many bases for objecting to evidence and it is not possible to set them all out here. The most usual matters to which there can be a proper objection are these:

  • Leading Questions – the question is leading: that is it is asked in such a way as to suggest a particular answer;
  • Ambiguous Question – the question is ambiguous or is two separate questions rolled into one;
  • Hearsay – the question will produce hearsay evidence. Hearsay evidence is evidence sought to be given by a witness of conversations with other people outside of the courtroom. Generally, such evidence is not admissible.
  • Relevancy – the question is not relevant to any matter in issue;
  • Opinion – the question seeks a conclusion as to the significance of facts when the witness is not an expert whose expertise has been established: that is, the question asks for an opinion.