Supporting vulnerable witnesses
Being a support person
In NSW, vulnerable witnesses giving evidence in serious criminal cases are entitled to have a support person near them in court, to reduce as much as possible the stress of giving evidence.
This includes witnesses who are children, intellectually impaired, or complainants in sexual assault matters.
Other vulnerable witnesses can have a support person with them if the judge or magistrate agrees.
While being in court on the day is a support person’s ‘official’ role, vulnerable witnesses also need support and reassurance before they appear in court and afterwards.
If you are a support person, talk to the witness about how best you can support them throughout the prosecution process. This may mean, for example, going with them to meet the prosecutor ahead of the court case, and going back to court for other important parts of the case they may want to attend, such as when the jury return its verdict, or for sentencing.
Who can be a support person?
It’s up to the witness to choose their support person. They can be, for example, a parent, guardian, relative, friend, professional counsellor, or someone else. Some vulnerable witnesses can have more than one support person if they need them, such as a family member and a counsellor.
Not everyone has someone who can fill this role, and there are a number of court support services in NSW that can provide support for a vulnerable witness (see Financial and other support and information). In matters the ODPP is prosecuting, a Witness Assistance Service (WAS) officer can sometimes be a support person.
It’s important to know that you cannot be a support person if you are a witness or a potential witness in the case – if you are, the judge or magistrate can disallow you as the witness’s choice.
Before their court date, victims and other key witnesses usually meet the ODPP lawyer and barrister (who is called the Crown Prosecutor, or ‘the prosecutor’) to discuss their witness statement and what will happen in court on the day.
One of the things you can do as a support person is to go with the witness to this meeting. Both the witness and the ODPP have to agree for you to be able to sit in on it, but even if they don’t you can wait outside so you are there for the witness when it’s finished.
It’s also important to make it clear to the ODPP lawyer or prosecutor before the court date that you are the witness’s support person, so they can tell the court. If the hearing is a ‘closed court’ (that is, closed to the public) the court’s permission is needed for you to be in the courtroom. If the witness is giving evidence from a separate room via CCTV / AVL, the ODPP lawyer or prosecutor again will have to ask the court’s permission for you to be there.
Before the court date you can also support the witness by helping them prepare for the practical side of going to court – such as getting there on time, what to wear, what to pack, and where to meet the prosecutor. (To answer some questions you may have, see Going to court and being a witness.)
If the witness is giving evidence from the courtroom, the ODPP lawyer or prosecutor can tell you the best place to sit so that the witness can see you easily and you are not close to the accused. The public gallery on the side of the courtroom the prosecutor is sitting is often a good place. If there is a good reason for you to sit closer to the witness, the ODPP lawyer or prosecutor can ask the judge or magistrate for permission.
In court, you can support the witness by keeping eye contact with them. When the hearing stops for lunch or at other times, you can go with them in and out of the courtroom.
If the witness is giving their evidence from a separate room via CCTV or AVL, a court officer should be in the room too. They, or the judge or magistrate, will let you know to where to sit, which will normally be next to the witness. While separated from the courtroom, the AVL room is still part of it and normal rules and traditions apply – such as bowing to the judge or magistrate when they enter and leave the court.
When the equipment is turned on, the witness should be able to see and hear the judge or magistrate, or the lawyer asking questions. The witness should not be able to see the accused person, and should also not be able to see themselves on screen. Everyone in the court will be able to see and hear the witness on the TV screens in the courtroom.
Some witnesses will have their electronically recorded statement played to the court as part of or all of their evidence. From the AVL room, you will see and hear the recording as it is played to the court. The court won’t be able to see the witness during this time.
If there is a short adjournment (break) the equipment is usually, but not always, turned off – the court may still be able to see and hear the witness even though the witness cannot see anything on their screen.
When the equipment is turned off, is not transmitting or breaks down, you may assist or comfort the witness, however you must not talk about the case, the evidence or the questions they are being asked.
Before going into the AVL room, it’s a good idea to discuss with either the ODPP lawyer or prosecutor or the court officer what will happen if there are any problems with the technology.
After the witness has given evidence
After the witness has given their evidence they may want to talk about what has just happened, but they may be overwhelmed and upset and not want to discuss it.
As well as offering emotional support, you can help with some practical things, such as claiming witness expenses. Ask the police officer in change (OIC) for assistance with making a claim.
If the witness is distressed and you are concerned for their wellbeing, contact WAS on 1800 814 534.
It’s important that as a support person, you don’t say or do anything that might influence or interfere with the court case.
Don’t help the witness prepare their evidence or rehearse what they are going to say. On the day, don’t talk to them about their evidence before or during the court hearing or during breaks.
When they are giving evidence, don’t help or prompt them in any way with their answer – for example, don’t nod at them if you think they should answer ‘yes’ to a question. If you do try and influence their answers, you may be removed from the courtroom.
You must not touch the witness while they are giving evidence.
It's also important not to:
- speak while the witness is before the court, unless the judge or magistrate asks you a question.
- take notes while the witness is giving evidence.
If you are unsure about your role as a support person, or concerned about the person you are supporting, you can speak to a WAS officer (on 1800 814 534), the ODPP solicitor, the police officer in charge, or the Victims Access Line (on 1800 633 063).
If as a support person you feel that you are affected by the court process or what you have heard in court, it’s important to seek out support for yourself. If you need to talk to someone about how you are feeling you can contact Lifeline on 131114.