witness
a person who has information (called "evidence") which may be useful in the proceedings of a case being heard in a court. Giving evidence is also sometimes referred to as "testifying".

Witness

You may be asked to be a witness of fact if:

  • you’ve seen or heard about an event related to a case
  • you’re able to say how it happened

You may be asked to be an expert witness if you have specialist knowledge.

How will I be asked to be a witness?

summons
a formal document issued by a court which says someone must appear in court on the date stated in the document.

The person (or their lawyer) or prosecutor who needs your evidence will ask you to go to court as a witness.

You will be served with a witness summons for both criminal and civil matters.

Tell them if you have previous arrangements (such as a hospital visit or a holiday) that affect when you can go to court.

What if I don't go to court?

If you become ill or an emergency happens on the day you have to go to court, tell the person who summonsed you as soon as possible. You can contact the court registry if you are unable to contact the person who summonsed you.

If you don’t turn up without telling anyone, you’ll cause significant delays to the case. In a criminal prosecution, a warrant may be issued for your arrest.

If you refuse to go to court as a witness, you may be served with a subpoena. A subpoena is a court order that says you must go to court on a particular date and time. If you don’t go to court after a witness summons or a subpoena has been served upon you, you may be:

  • arrested
  • charged with contempt of court.

What should I do before the hearing?

The person who summonsed you will probably want to see you before the hearing, to go through your evidence. This gives you:

  • an idea of the type of questions you might be asked when you’re in the witness box
  • a chance to ask questions.

Make sure you have the correct details of the date, time and place of the hearing.

Organise any papers you have about the case. Bring them to court so you can refer to them if you need to.

You should also tell the person who asked you to be their witness if you have:

  • problems understanding or speaking English
  • problems reading
  • poor eye sight
  • any health issues that affect your mobility.

Visiting court beforehand

Many people have never been into a courtroom before. It’s a good idea to visit court before your case so you can see where the hearing will take place.

Courts are usually open to the public, so you can watch other cases to get familiar with court proceedings.

Do I need a lawyer?

No, you don’t need a lawyer to appear as a witness in court.

However, if you’re worried that your evidence may cause you a legal problem, you should see a lawyer before you give your evidence.

Do I have to take an oath or affirmation?

When it’s your turn to give your evidence, the court officer will ask you to stand in the witness box.

You will be asked whether you want to take an ‘oath’ or make an ‘affirmation’ to tell the truth.

Both are promises to tell the truth. Your evidence is regarded in the same way, no matter which you do.

It’s an offence to give false evidence in court after taking this oath or affirmation.

An oath

  • has religious significance
  • is usually made while the court officer is holding the Bible, the New Testament or the Old Testament, or another religious book (but this isn’t essential)
  • can be made by someone without religious beliefs; and their evidence is still valid

If you need a religious book other than the Bible, please tell the person you are being a witness for at least 24 hours before your court appearance, so arrangements can be made.

The words of an oath are usually read to you by the court officer:

‘Do you swear you shall by Almighty God [or the name of the god you recognise] that the evidence you shall give will be the truth, the whole truth and nothing but the truth.’

You respond by saying ‘I swear’.

An affirmation

  • has no religious significance

The words of an affirmation are usually read to you by the court officer:

‘Do you solemnly and sincerely declare and affirm that the evidence you shall give will be the truth, the whole truth and nothing but the truth.’

You respond by saying ‘I affirm’.

What is an affidavit?

An affidavit:

  • is a written statement where the contents are sworn or affirmed to be true
  • is used in court as evidence. This means you will need to make your affidavit before the court hearing.

In some cases, you may not need to give evidence in person. However, you may need to appear to answer questions about the information in your affidavit.

Your affidavit:

  • should include your name address and occupation
  • should include details of your evidence
  • can be made with the help of a lawyer
  • must be signed in front of a justice of the peace (JP). After witnessing your signature and taking your oath, they must also sign the affidavit.

It is an offence to give false evidence by affidavit.

How will I give evidence?

  • If you have made an affidavit, the party (or their lawyer) who has asked you to give evidence will ask you to confirm the contents of your affidavit. You may be asked further questions by the parties appearing in court or their lawyer, to get more detail about your evidence.
  • If you have not made an affidavit, you’ll be asked questions to draw out the details of your evidence.

Sometimes, you may be cross-examined after you give your evidence, to provide further clarity.

What is cross-examination?

Cross-examination’ is when you are asked questions by the other party (or their lawyer) to:

  • ‘test' your evidence
  • get evidence you did not provide.

Here are some useful tips:

  • Listen carefully to the whole question. Think about it, then answer.
  • Don’t offer more detail than is necessary ­— it’s okay to say ‘yes’ or ‘no’ if that’s all you need to say.
  • Don’t try to answer other questions you think ‘might’ or ‘should’ be asked. Don’t offer an opinion about the case.
  • Answer each question truthfully and to the best of your memory. If you don’t remember something, or your memory is not good, you can say so.
  • If you don’t hear the whole question, you can ask for it to be repeated.
  • If you can’t understand a question, you can say so. The person questioning you should then try to ask it differently.
  • Don’t argue with the person questioning you. Don’t cross-examine and question them yourself.
  • Your evidence is recorded through the microphone in front of you, so please speak clearly. Gestures such as nodding your head are not recorded.
  • Take a copy of your affidavit with you, but don’t read or open it unless you’re asked to.
  • If you are feeling distressed or tired and would like a break for a few minutes, ask the Magistrate.

Do I have to stay in court after giving evidence?

Once you have finished giving your evidence, the Magistrate will give you permission to leave. You can leave the court completely, or stay in the public gallery.

Except where there has been a ‘suppression order’, you may tell others what evidence you have given.

However, don’t discuss your evidence with someone who is yet to give evidence. That way, there is no suggestion that you have influenced their evidence.

How can I book an interpreter?

The Court can provide an interpreter for you. If you need an interpreter, please contact the Registry well before the date of your court hearing.

Witness expenses

If you were a witness in a criminal case you can claim loss of income and also expenses incurred if you were a witness for the prosecution.

In Criminal Court

Witness for the defence

You can claim loss of income from the accused person.

Witness for the prosecution

You can make a claim from the Crown for loss of income and incurred expenses.

  • Complete the Statutory Declaration on the back of the Witness Expenses Claim (docx, 44.7 KB) form and return it to the Court where you gave evidence. Remember to include any required supporting documents.

Supporting your claim

Loss of wages/salary
  • You must support your claim for loss of wages/salary by a letter from your employer stating the actual amount deducted from your wage/salary while attending court.
  • The Court will pay the actual loss incurred (for each hour, or part of an hour), up to a maximum of 2.5% of the seasonally adjusted average weekly earnings of a full time adult employee in Tasmania as published by the Australian Bureau of Statistics.
Self employed
  • If you are self-employed, you should support your claim for loss of income by evidence such as a certificate from your accountant.
  • Supply your ABN otherwise withholding tax may be deducted from your payment.
Expert witness
  • If you are called as an expert witness, the Registrar of the Court will review your claim and pay all just and reasonable expenses. The Magistrate will need to declare that you gave expert evidence.

Note:

  • All claims are subject to being verified by the Department of Justice.
  • All payments are taxable. You should declare them in your income tax return.

In Civil Court

If you are a witness in a civil case the parties (not the Court) will be responsible for payment of any expenses that you incur in attending Court.

Vulnerable witnesses and victims in criminal cases

Most people will give evidence in the courtroom itself. However, to make going to court a safer and less threatening situation (especially for children, or some victims of criminal cases):

  • you can have a friend or relative in court while you give evidence, provided they are not appearing as a witness
  • the court can be closed to the public while you give evidence
  • you can give your evidence from another room by a video link-up.

Ask the prosecutor to apply to the Magistrate for permission to use these before you have been summonsed to give evidence.