On the day: Going to court and giving evidence
Going to court
On the day you have to give evidence, plan to arrive 30 minutes before court starts, which in NSW is 9.30am in Local Courts and 10am in District Courts. Many courts have airport-style security screening, which can cause delays. In some court buildings it can also take time to find your way around.
The ODPP prosecutor, the police officer in charge of the case (the OIC), or your WAS officer will usually arrange to meet you at a particular spot. If they haven’t done so, go through security and ask at the court office or inquiry counter where you should wait. Court officers who can help you will normally wear a red badge or a uniform. At times they will go in and out of the courtroom calling names and checking who is there. Some court buildings, like the Downing Centre in Sydney, have special meeting places for witnesses.
You will be able to find the courtroom number on the daily court list in the foyer or entrance of the court house but it’s important not to go into the courtroom until it’s your turn to give evidence. This is so you don’t hear what other witnesses say. It’s also important not to discuss the case with other witnesses while waiting to go into court.
In most court houses, everyone goes through the same entrance. This means you might see the accused if they are on bail, or their family, somewhere in the building. If this would make you feel unsafe, tell the police officer in charge, the ODPP prosecutor, or your WAS officer before your court date. On the day, you can also tell a court officer if you are feeling uncomfortable or threatened.
Court proceedings are serious and it’s best to wear conservative clothes. Men don’t have to wear a suit and tie but all witnesses should aim to look neat and tidy. Some courtrooms can be cold, so it’s a good idea to pack something warm.
Even though it’s important to arrive early, delays are common in courts and you may have to wait before you are called to give evidence, sometimes for a couple of hours. Bring something to read or do to help pass the time. You might also want to pack some food and drink for before or after you give your evidence (you can’t eat or drink in the courtroom, although you can ask for a glass of water if you need one).
Courts are usually open to the public, so in most matters your friends and family will be able to sit in the public gallery of the courtroom when you give evidence, unless they are also witnesses in the matter.
Vulnerable witnesses can bring a support person with them into court. The magistrate or judge will normally allow a support person to sit close by while the witness gives their evidence.
Court sitting hours in NSW are usually 9.30am to 4pm in the Local Court and 10am to 4pm in the District and Supreme Courts, with a break of about 15 to 30 minutes for morning tea and between 1pm and 2pm for lunch. The court building will usually be open before 9.30am.
A court officer will call your name when it’s your turn to give evidence. You will then be shown to the witness box, which is usually at the front of the courtroom. (This diagram shows you the main people you will see in criminal trial by jury in the District or Supreme Court.)
Behave respectfully while you are in court. It is custom to bow when you enter the courtroom and again when you leave, and to stand and bow when the judge or magistrate enters and leaves.
You should also switch off your mobile phone and take off your hat or cap and sunglasses. You cannot eat, drink or take notes when you are in the witness box (although you can ask for a drink of water if you need one).
Judges (who sit in the District and Supreme Courts) and magistrates (who sit in the Local Court) are all addressed as ‘Your Honour’.
Before you take a seat, the magistrate, judge or a court officer will ask you whether you want to swear to tell the truth by taking an oath on a religious book, such as the Bible or Koran, or by what is called an ‘affirmation’. They will then read out the oath or affirmation for you to repeat. It is an offence to give false evidence after taking an oath or affirmation.
You will be asked your name, and, if relevant, your occupation and address. If you don’t want to state your address in the courtroom, let the ODPP prosecutor know before you give your evidence.
When the witness is a child, the judge or magistrate may ask them some questions about whether they understand the difference between telling the truth and telling lies before they begin giving their evidence.
Listen closely to the questions you are asked. Focus on answering honestly and accurately. If you need some time to think about an answer, say you need time. Don’t guess; if you don’t understand a question or are unsure how to answer it, say so. The events you are being asked about may have occurred a long time ago. If you can’t remember something you are asked about, don’t be afraid to say you can’t remember.
Speak clearly so your evidence can be heard and understood. The microphone in front of you only records your voice, it doesn’t make it louder.
If you are giving evidence about a conversation, try to repeat the words that were used. For example, if the accused is a male and said, ‘Move out of my way’ during the incident, the right way to give this evidence is to say, ‘He said, “Move out of my way”’, not ‘he told me to move out of his way’.
Answer the questions you are asked. For example, if the question is, ‘Do you know what street you were on when this occurred?’ and you do, just say ‘yes’ rather than giving the name of the street, even if it feels like it would be more helpful to give the street name.
The first part of your evidence is called your ‘evidence-in-chief’. It is when the prosecutor asks you questions about what happened, usually in the order that they happened.
The prosecutor might also show you photographs, or maps or diagrams of the crime scene, and ask you to identify them.
After you give your evidence-in-chief, the accused's lawyer (called ‘the defence’) will question you. This is called a ‘cross-examination’. It is the job of the defence to challenge your evidence, and the questions you are asked may upset or embarrass you, suggest you’re being untruthful, or seem rude and aggressive. Try not to get angry or to take it personally, just continue to answer each question honestly and clearly.
The defence will often make suggestions or statements to you such as ‘I put it to you …’ or ‘I suggest to you …’. If you don’t agree with something suggested or put to you, it is important to say so. If you don’t understand what you’re being asked, say you don’t understand.
After you have been cross-examined, the ODPP prosecutor may ask you some follow-up questions to make sure that what you have said has been clearly understood. This is called a ‘re-examination’.
The magistrate or judge may also have some questions about your evidence.
While you are giving evidence, the defence might say, ‘Objection’, or the magistrate or judge might interrupt. If this happens, stop and wait until you are asked again to answer the question, or you are asked a different question.
If you are still giving evidence, it is all right to tell the judge that you think you have made a mistake. If you have been excused after giving your evidence and the trial is still proceeding, you should contact the ODPP prosecutor.
If you need them, you can ask for a drink of water or a tissue while you are in the witness box. If you need to go to the bathroom or are feeling unwell, ask the magistrate or judge if you can have a break.
Sometimes the magistrate or judge and the lawyers will need to discuss a legal issue. If you are in the witness box, you will asked to step outside the courtroom. You could be called back at any moment, so stay close by.
Talk to the prosecutor about how long you are likely to be in the witness box. It is very hard to give even a general guide as it depends on many factors, including the nature of the case, how long your statement is, and how much of your statement the defence wants to question you about. Some witnesses will be in the witness box for minutes only, others for hours or even days.
After you have given your evidence and have been excused by the magistrate or judge, you are free to leave. If you want to stay and listen to the case you can, unless there is a chance you will have to give evidence again later in the matter. Take a seat in the public gallery. (Remember, you won’t be able to claim witness expenses for any time you choose to spend in court after you have given your evidence.)
Even when you have given your evidence, you will need to check with the ODPP prosecutor or your WAS officer about whether you can talk about it to your family, friends or others. Sometimes you will have to wait until all the legal proceedings are over.
If the trial is still running then you should contact the ODPP prosecutor and let them know what you have remembered.