If you are a witness in a criminal proceeding before the ACT Magistrates Court or ACT Supreme Court, it can be difficult to understand the process and your rights and responsibilities.
Starting from the beginning of the process, if you witness an alleged criminal event and the prosecution or defence are aware you witnessed the event, there is a prospect that you will be called to give evidence in court about the event. The extent to which a witness speaks to police, the DPP or a defendant’s lawyer prior to court, and the extent of documents or other evidence that they provide, is a matter for you.
The time between witnessing an event and giving evidence about that event in court is often many months or even years. In the Magistrates Court, you will give evidence in a “hearing”; in the Supreme Court, you will give evidence in a “trial”.
No witness is legally obligated to attend court to give evidence unless they have been personally served with a Subpoena to Give Evidence. Personal service in effect means handing a hard copy of the subpoena to you personally. A witness can, however, attend court to give evidence without a subpoena willingly if they wish to do so.
Once a hearing date or a trial date is set, this is generally the time at which the prosecution or defence will begin arranging for Subpoenas to Give Evidence to be filed in court and personally served on the required witnesses. Rule 6602 of the Court Procedures Rules 2006 (ACT) provides that a subpoena must be served no later than 5 clear days before the date that the witness is required to attend court. For witnesses residing interstate it must be served 14 clear days before.
If you have been properly served with a Subpoena to Give Evidence more than 5 days before the compliance date, you must attend on that date. If a witness does not attend court when required, the Court has power to issue a warrant for the witness to be arrested and brought to court.
Once you arrive at court on the relevant day, the court staff will be able to assist you to find the right courtroom. The lawyers or the police who have sought your attendance at court will then generally have an introductory chat to you. You will then wait outside the courtroom until it is time for you to give evidence. The Judge’s or the Magistrate’s associate will come outside the courtroom and call your name and you will then go inside.
At the witness box, you will be asked to take an oath (swearing on a holy book) or an affirmation (a solemn promise to the Court). Once you are sworn or affirmed, you will be “under oath”. While under oath, you must answer the questions that are asked of you, and you are bound to tell the truth. Failure to take an oath or affirmation, failure to answer questions, and giving false or misleading evidence, are serious criminal offences.
The party who called you as a witness will generally ask you questions first, followed by the other party who may ask leading questions in cross-examination. The Judge or Magistrate may also ask you some questions. If a question is asked and you hear the other party “object” to the question, do not answer the question until the objection is dealt with. Once there are no further questions for you, you will be excused from the witness box and allowed to leave.
While you are giving evidence, it is always best practice to genuinely do your best to answer questions fully, openly, and honestly. Witnesses who are argumentative usually have a more difficult time in the witness box. Three simple tips to keep in mind when giving evidence to make the process simpler and more effective are:
1. Listen to the question that is asked. If you do not understand the question, ask for it to be asked again or in a different way.
2. Answer the question that is asked. Do not answer half the question, more than the question, or a different question.
3. Once answered, wait. If clarification or more information is required, another question will be asked.
If you have been called as a witness and would like advice about your rights, obligations or what to expect, our experienced criminal defence lawyers can assist. To discuss your circumstances, call Hugo Law Group in Sydney (02 9696 1361), Canberra (02 5104 9640) or Perth (08 6255 6909) to make an appointment to speak with one of our lawyers.
