​How witnesses give evidence      

There are different steps to giving evidence in a court case. The main steps are:

  • Evidence-in-chief when you answer questions asked by the prosecutor
  • Cross-examination when you answer questions asked by the defence and (sometimes)
  • Re-examination when you answer more questions asked by the prosecutor

The prosecutor and the defence lawyer will stand up behind the 'bar table' when asking you questions. They must ask the Judge or Magistrate for permission to come up to the witness box. The Judge or Magistrate is the person in charge of the court.

Evidence-in-Chief

Evidence-in-chief is the first part of your evidence. The prosecutor will ask you questions about what happened and it's your job to answer the questions truthfully. This is how you tell the court about what happened to you.

If your statement was recorded by audio or video tape by police or a Joint Investigation Response Team, it can be played in court as all or part of your evidence in chief. If you are using CCTV to give evidence, you will be able to hear and watch the recording from the CCTV or Remote Witness room and the court will not see you.

The prosecutor is not allowed to help you with your answers in any way. If they need more information or more detail, they will ask you more questions. Just wait for each question and answer it as best you can.

The questions asked in evidence-in-chief are based on what you told the police in your statement. You are allowed to read your statement before you go to court but you won't usually be allowed to look at it when you give evidence. If you gave your statement by way of an audio or video recording, you will have the chance to hear or look at this before court.

Sometimes the defence lawyer will say "objection" about the way the Prosecutor is asking you questions. The magistrate or judge will decide if you can be asked the question and how it should be asked. Don't take objections personally, just wait and you will be told when to continue.

Cross-examination

Cross-examination is when the lawyer for the accused (the defence lawyer) asks you questions. This is the part of giving evidence that people usually worry about most.

The accused tells the defence lawyer what they say happened and part of the defence lawyer's job is to ask you questions about that. Sometimes the defence may ask you questions you don't expect and may bring up things about your personal life. If the defence lawyer asks you a question that is not allowed, the prosecutor can object to it. If this happens, you might not have to answer the question but it is up to the Judge or Magistrate to decide. If you do have to answer the question, you need to answer it truthfully.

Sometimes the defence may ask questions like "I put it to you...¦" or "I suggest to you...¦". These may not sound like questions but they are. If you don't understand what the defence is asking you, ask them to say the question again in an easier way. If you do not agree with what you are being asked it is okay to say you don't agree.

Questions asked by the defence lawyer might make you upset or angry. The defence lawyer might suggest that you are mistaken, confused or not telling the truth, or that you are exaggerating or deliberately changing what happened. Stay calm and try to answer the questions as best you can even if you feel hurt or offended.

If you think a question is offensive or you are not sure if you should answer, you can ask the Judge or Magistrate if you have to answer it.

Re-examination

After the defence lawyer has finished asking you questions, the Prosecutor may want more information about what you said in cross-examination. They can ask you more questions. This is called re-examination.

Tips about giving evidence

Helpful things to remember about giving evidence

You need to explain exactly what happened in the best way you can. As a witness you can only give evidence about what you know. This means what you saw, what you felt, what you heard, what you did.

Helpful things to remember are detailed below:

  • Speak loudly, speak clearly and speak slowly

  • Listen carefully to the questions

  • Don't be afraid to say you don't know if you really don't

  • If you don't know the answer to a question, just say so, don't guess

  • If you don't understand a question just say so or ask for it to be said again

  • If you can't remember say that you do not remember

  • Only answer what you are asked

  • If you feel you need to explain your answer then ask if you can do so

  • Use short sentences

  • If you need time to think about your answer then say that you need more time

  • Try not to get angry with the defence lawyer even if you feel they are being aggressive or rude to you; they have a job to do

  • If the question is difficult to follow or confusing, you can ask for the question to be said again in an easier way

  • Try to breathe evenly and stay as calm as you can

  • Take a deep breath and answer questions to the best of your ability

  • If you don't agree with what you are being asked, it's okay to say so

  • If you are giving evidence in the courtroom the accused will be there but you don't have to look at the accused unless asked to

  • Most people feel nervous; remember if you feel sick or need to use the bathroom, ask the Magistrate or Judge if you can have a break

Remember to not talk about your evidence with other witnesses. While giving your evidence you might be asked to leave the courtroom. This can happen if there is a break for morning tea, lunch or legal arguments or if court finishes for the day. It is important that you don't talk about your evidence with anyone during these breaks. Make sure to ask the Witness Assistance Service Officer or Office of the Director of Public Prosecutions (ODPP) lawyer about when you can talk about your evidence.

If you are giving evidence about a conversation, try to use the words that were said. For example, if someone said "Take me to the shops" then the right way to give this evidence is to say, "She said, 'Take me to the shops'" not "She told me to take her to the shops".

Sometimes people have swear words in their statement, it is okay to say these in court when you are telling the court what was said.

You may be asked to identify clothing, jewellery or other items when you are giving evidence. These are called exhibits.

In cases involving personal violence you will have to describe the details of what happened during the assault.

What if I get upset while giving evidence?

People often get upset or embarrassed when they are giving evidence and courts understand that this happens, particularly if you have to talk about personal things. You may also have to talk about your use of drugs or alcohol or your mental health history and you might feel uncomfortable with this.

Generally, in sexual assault cases the court cannot ask about your previous sexual experiences. It is the Judge or Magistrate who will decide what questions can or cannot be asked.

If you do get upset, you may be asked if you need a break or you can ask for one. Also, there are set breaks during the day for morning tea and lunch. Court staff can give you drinks of water and tissues if you need them.

There are things that can help you cope with being at court. Think about this when you are getting ready for court.

It can be good to have friends or family with you to travel to and from court, to wait at court and to have lunch or morning tea.

You can have someone with you while you give evidence at court. This is known as court support. Court support can be provided by a number of services and victim support groups depending on your needs - please refer to the Help and Support page for contact details. A friend or family member can also provide court support as long as they are not a witness in the case. The Judge will decide where they sit so that you can see them. They cannot help you to answer the questions but it may be comforting to have them near you. You can speak to the prosecutor and the Witness Assistance Service at the ODPP about the role of your support person.

When the Magistrate or Judge says "You are excused", this means that you have finished giving your evidence. This means that you can go home or you may be able to sit in the back of the courtroom and listen to other witnesses but check with the prosecutor first.

Even when you have finished giving evidence you still need to check with the Witness Assistance Service Officer or ODPP lawyer about whether you can talk about court. Sometimes you may have to wait until all the legal proceedings have finished before talking about your evidence with friends, family or other witnesses.

When you have finished giving evidence

When the Magistrate or Judge says "You are excused", this means that you have finished giving your evidence. This means that you can go home or you may be able to sit in the back of the courtroom and listen to other witnesses but check with the prosecutor first.

Even when you have finished giving evidence you still need to check with the police prosecutor or the Witness Assistance Service Officer or ODPP lawyer about whether you can talk about court. Sometimes you may have to wait until all the legal proceedings have finished before talking about your evidence with friends, family or other witnesses.