Being called as a witness in a criminal court case can not only be stressful, it can disrupt everyday life.
Often, the first questions victims and other witnesses have about going to court are practical ones: When will I have to go? How will I get there? How long will I be there? Who will look after my children?
We answer these, and other early questions about going to court that victims and witnesses often ask, below.
- When will I have to go to court and how will I know where to go?
When a date for the hearing or trial has been set, you will receive what is called a ‘subpoena’ in the mail. This means you are required to go to court and give evidence. It will tell you which court to go to and the date to be there. The ODPP prosecutor will also write to you with this information.
The court date in the subpoena is the date the hearing or trial is due to start. Sometimes this will change, or the hearing or trial will start on that date but witnesses won’t be called on the first day. The ODPP prosecutor and the police officer handling the matter (the OIC) will stay in touch with you about when you are to be in court. (If you have a WAS officer, they will also talk to you about where to go and when to be there.)
- What if I’m busy at work? Will I be paid for the time I take time off?
If you have been called to give evidence, your employer has to let you take the time off you need to attend court, even if you’re busy at work.
Most employers don’t have to pay you for this time – some workplace agreements require this, but they are rare.
Whether you’re an employee or a contractor / self-employed, you can claim some compensation if you lose pay or income when you attend court. You will need some written proof to support your claim. For more information on the expenses you may be able to claim, see Witness expenses.
- Who will look after my children?
If you have children in your care, it’s best to ask family or friends to look after them when you go to court to give evidence. There are no childcare facilities in any court in NSW, nor anyone at court you can leave children with.
If you don’t think your family or friends will be able to help you, tell the ODPP prosecutor as soon as possible. They may be able to arrange for you to have childcare paid for while you go to court. It is especially important to talk to the ODPP prosecutor, or the police officer in charge, if you will need to be away overnight to give your evidence and can’t leave your children with family or friends.
- How will I get to court?
Witnesses are usually expected to take public transport to court, if it is available. You can claim the cost back, so keep your tickets or receipts. If you have an Opal card you can use your statement to make your claim.
If public transport isn’t available, you can take your own vehicle and claim an amount for every kilometre you have to travel.
If there is no public transport and you don’t have a vehicle, talk to the ODPP prosecutor or police officer in charge about hiring a car.
If you will have to travel by air to get to court, you will have to arrange this with the ODPP prosecutor / police officer in charge (see Witness expenses).
- How long will I be at court on the day?
It is very difficult to say how long any witness will have to spend at court. Delays are common, and you might have to wait several hours before you are even called to give your evidence. Witnesses can then be in the witness box for minutes, hours or sometimes days. The ODPP prosecutor will have the best idea of how long you will have to be in court but won’t be able to give you an exact answer.
- Can I bring someone with me?
Yes, your family and / or friends can come to support you – they can stay with you while you wait to be called then, if they are not also witnesses, sit in the public gallery in the courtroom while you give your evidence.
Vulnerable witnesses, including children and victims of sexual assault, can have a support person with them while they give their evidence. The court will usually allow the support person to sit close to the witness. Your ODPP solicitor can advise you whether you are eligible for a support person.
- What if I don’t want to give evidence?
You cannot refuse to be a witness. A court can issue a warrant for the arrest of a witness who has been summoned and does not attend. If you don’t want to be a witness because you are concerned for your own safety, or that of your family or friends, make sure you let the police officer handling the matter and the ODPP prosecutor know so they can talk to you about security arrangements that can be made.
- Will I see the accused person in court?
The accused person will be in court for the hearing or trial, including when you give your evidence. If your matter is in the Local Court, they will sit behind their legal team. In the District Court, they will usually sit in an enclosed space called a ‘dock’.
If they are in custody, officers from Corrective Services NSW will take them from prison to the cells in the court building, then from there through a special door into the courtroom. If they are on bail, they will enter and leave the courthouse and the courtroom through the public entrance. If you have any concerns about seeing the accused or their family members at court, let the ODPP prosecutor and the police officer in charge know before your court date. Arrangements can be made for you to enter and leave the court by a different door to the accused. You can also tell a court officer on the day if you are feeling uncomfortable or threatened.
Victims in matters involving sexual offending, domestic violence, or who meet the definition of a ‘vulnerable victims’ are generally entitled to provide their evidence via closed circuit television from another room in the Court precinct. They will not be in the same room as the accused and will not have to see the accused person when giving evidence. The ODPP prosecutor will be able to advise you if you fall into this category.
In all other matters, when you give your evidence, you will be able to see the accused and they will be able to see you. If you think this would distresses you, tell the ODPP prosecutor. Special court arrangements can be made for vulnerable witnesses, such as children and sexual assault victims, so they don’t have to be in the same room as the accused. These include being able to give evidence from another room via Closed Circuit TV (CCTV) or an Audio Visual Link (AVL).
- Will I definitely be called to give evidence if I receive a subpoena?
No, even if you receive a subpoena in the mail, it doesn’t mean you will definitely be called to give evidence. You might not be called if, for example:
- the accused pleads guilty to all charges, so the court doesn’t need to hear from witnesses
- the prosecution decides not to use your evidence
- the prosecution decides there is not enough evidence to continue with the case
- your police statement is accepted as evidence without the need to cross-examine you
- the trial is aborted (stopped early).
- I have received a subpoena to produce documents, what will I do?
You must comply with the subpoena. In some circumstances you may be able to claim 'privilege' over the documents, but the ODPP cannot provide you with legal advice about this and you will need to consult your own lawyer.
If the documents requested are counselling notes or other professional records made in connection with a sexual assault, Legal Aid NSW provides a free advice service to victims and witnesses (email: email@example.com) . The ODPP lawyer or WAS officer can help with a referral to this service.
- Do witnesses have to give evidence in committal proceedings?
If you are a victim of violent crime, you are very unlikely to be called to give evidence while the matter is still in the committal stage before the Local Court. If the accused wants to cross-examine you, they have to show the magistrate there are ‘special reasons’, in the interests of justice, why you should give evidence — which is difficult to do. This step is so victims usually only have to go through the trauma of appearing in court once, during the trial.
Sexual assault victims who are under 16 years old or cognitively impaired cannot be called to give evidence at this stage of the prosecution.
Generally, witnesses who are not victims are also not called to give evidence during the committal process. Unless the prosecution and defence lawyers agree a witness should appear, the magistrate has to be satisfied there are ‘substantial reasons’ in the interests of justice to call them. This is not as difficult as showing there are ‘special reasons’, but it is still a barrier.
- Is it possible I could end up being charged with something?
As a witness in a criminal case it is important that you tell the truth to the court and cooperate with any orders the court makes.
If you deliberately fail to comply with a court order, or you are later found to have deliberately lied to the court, then you could be charged with a criminal offence.
- Can I get a copy of the statement I made to the police?
Yes. If the case you are involved in is currently before the courts, the ODPP lawyer or police officer in charge of the matter can provide you with a copy of your statement. If the case has finished, you will need to request a copy of your statement and provide the name of the accused person and the ODPP CASES reference if possible.
You should send your request to:
Deputy Solicitor (Legal), Locked Bag A8, Sydney South, NSW, 1232.
Generally you will not be entitled to any statements made by other witnesses or a complete copy of the brief of evidence. If you are a victim of a crime, we can provide you with copies of any medical statements relating to you and the crime.
- How long before the case is over?
Most criminal court matters are finalised within two years. However, some move through the system much more quickly than this and others much more slowly. It is very difficult to predict how long the court process will take in any particular case.
- Is the ODPP lawyer my lawyer?
No, the ODPP's role is to represent the community. While we work closely with the police and with victims and other witnesses of crime, we don't represent them in the way that other lawyers represent clients.