What is Giving Evidence?
In legal proceedings, each party has a different 'case' or position that they are trying to convince the Court is the 'best' case. In order to satisfy the Court that their case is the better option, they need to either prove or support their case with evidence. Evidence can be documentary, such as contracts or affidavit material, or oral whereby evidence is given in Court.
If you are involved in legal proceedings of any kind, whether as a party or as a person who knows information that supports a party's case, you may be required to give evidence in Court. People who are required to give evidence in Court are called 'witnesses'.
If you are not a party to a proceeding, and a party or the Court requires you to give evidence, you are likely to be served with a subpoena. A subpoena is a court document that summons you to Court and details what evidence is being sought from you. For example, in a criminal proceeding, you may be called by the Director of Public Prosecutions to give evidence to support a witness statement that you made to the Police when you witnessed another person committing a crime.
How to Give Evidence
You will need to be in attendance at Court at the relevant date and time. When the Court is ready to hear from you, you will be 'called' into the witness box, which sits to the side of the Court room.
You will be asked to step into the witness box and remain standing. The Judge's Associate will ask you whether you want to take an oath or affirmation that the evidence you give will be the truth. An oath is when you swear on the Bible or other religious text that you will tell the truth. An affirmation is where you solemnly and sincerely declare that you will tell the truth. Once the Associate has taken you through either your oath or affirmation, you will then be asked to state your full name, address and occupation. You will then be directed to be seated.
The Lawyer for the party who called you as a witness will take you through your 'story' by asking you questions. This first set of questions is called the 'examination'. During the examination, the Lawyer must only ask you open questions so that they do not tell you what to say. You must speak slowly, clearly and always tell the truth.
Once the examination is over, the Lawyer for the other party will ask you a second set of questions, known as the 'cross- examination'. The Lawyer for the other party will generally only ask you questions that require short, yes or no answers.
Cross-examination can be a very traumatic experience, even for the most truthful of witnesses. This is because the Lawyer for the other party will be trying to point out any inconsistencies in your evidence, trick you into saying things you did not intend to say, and may try to ruin your credibility. You must listen to the questions carefully and only answer the specific question that you have been asked. It is not advisable to offer more information than that which is required. You must also remain calm and composed and remember that, while it may seem like a personal attack, the Lawyer is only doing their job, which is to ensure that the Judge does not believe your evidence.
After cross-examination, the first lawyer may ask you a few final questions to address any issues raised in cross examination, which is known as the 're-examination'. The Judge may also direct questions to you from time to time.
For general court etiquette, such as dress and how to behave in Court, please prefer to our Court Hearings article.
Can you refuse to give evidence?
If you are a party to proceedings, you can choose whether to give evidence or not. Obviously, whether this is advisable will depend on whether you have sufficient evidence to support your case, without giving evidence yourself.
If you have been subpoenaed to attend Court and give evidence, you can object to giving evidence on a few grounds, such as:
- the subpoena fails on technical requirements e.g. the subpoena was not served properly on you or the process server failed to give you any conduct money (which is payment for your reasonable expenses of complying with the subpoena)
- your evidence has no relevance to the proceeding, or
- your evidence is protected e.g. the evidence of a doctor or lawyer can be protected from disclosure by professional privilege. Another example is self-incrimination, as you maybe protected from giving evidence that tends to incriminate you.
However, even if you object to the subpoena, you generally still attend Court on the date and time specified, and the Judge will determine whether you can be excused from giving evidence.
Whether by choice or by virtue of a summons, when giving evidence you may object to answering certain questions, if answering tends to incriminate you. The Judge will rule on your objection and either:
- dismiss your objection and require you to answer the question
- uphold your objection and allow you to refuse to answer the questions, or
- uphold your objection but require you to answer the questions upon the Court granting you a certificate. The certificate prevents your answers being used against you in a subsequent Court case (other than for perjury).
If you do not attend Court when you are supposed to do so without lawful excuse, you can be arrested for 'contempt of court' and bailed to attend the next court date. Contempt of Court means that you have disobeyed the Court's orders. If you continue to fail to attend court, you can be imprisoned.
If you have to give evidence in Court, at Sharrock Pitman Legal we can help you understand the requirements of your attendance and evidence, and can advise you on the process and your options.
The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.
Liability limited by a scheme approved under Professional Standards Legislation.
Kevin Li is an Associate Lawyer in our Commercial Litigation team. He has an advisory and advocacy practice in the areas of Commercial Litigation, debt recovery, insolvency, liquidation, and shareholder, commercial and contractual disputes. Kevin can be contacted on (03) 8561 3315.