Communtity Law Manual | Criminal Courts | Evidence and witnesses

The trial

Evidence and witnesses

Why is evidence given?

Evidence is given by the prosecution and the defence to establish whether or not you are guilty of the crime you have been charged with. It is the prosecutor's role to prove beyond reasonable doubt that you are guilty.

Who gives evidence?

Evidence is given by witnesses to the crime and sometimes by experts who can provide information about aspects of the case (for example, a doctor or psychologist).

Witnesses provide information about what happened or about some other aspect of the case. They give evidence as witnesses either for the prosecution or for the defence.

Can someone be required to give evidence?

Criminal Procedure Act 2011, ss 159, 161

Usually if you're asked to give evidence you don't have a choice. If the prosecution or defence thinks that your evidence is essential, they can ask the court to summon you to be at the trial. This means you have to come to court and give evidence. If you don't, it's a criminal offence, punishable by a $1,000 fine if you don't have a reasonable excuse, and the court can also issue a warrant for you to be arrested and brought to court.

Even when you haven't already been issued with a witness summons, the court can issue a warrant for your arrest if it's satisfied that your evidence is necessary and that you won't come to court to be a witness unless you're made to do so.

Evidence Act 2006, s 71

Note: A spouse of a defendant must give evidence if asked. Spousal immunity from giving evidence was abolished by the Evidence Act 2006.

Must I give evidence when I am the defendant?

Evidence Act 2006, s 73(1)

No. The defendant does not have to give evidence. Usually you will consult with your lawyer before deciding whether or not to give evidence. It's up to you.

What is the process for giving evidence?

Each side calls witnesses to give its version of events. The prosecution puts its side first, and then the defence replies. There are three stages in giving evidence:

  • Examination-in-chief – This is when the lawyer for one side calls their witnesses and asks them questions in court to support their case.
  • Cross-examination – This is when the lawyer for the opposing side asks those same witnesses questions in court to challenge the other side's case.
  • Re-examination – This is when the lawyer who carried out the examination-in-chief gets a chance to question their own witnesses again to clarify points arising out of the cross-examination.

At the end of a jury trial, the lawyers for each side will sum up their cases. The judge will then sum up the evidence and advise the jury of the law it must apply in deciding whether the defendant is guilty or not guilty.

Special ways of giving evidence

Evidence Act 2006, s 105

The judge may direct that any witness in any proceeding may give evidence in an alternative way. An “alternative way” means evidence can be given from in the courtroom behind a screen, from outside the courtroom (in New Zealand or elsewhere), or by a video record made before the trial.

A party can apply to the judge to give this direction, or the judge can make a direction on his or her own initiative.

Evidence Act 2006, s 103

A direction that evidence may be given in an alternative way can be made on any of the following grounds:

  • the age or maturity of the witness
  • the physical, intellectual, psychological or psychiatric impairment of the witness
  • the trauma suffered by the witness
  • the witness's fear of intimidation
  • the linguistic or cultural background or religious beliefs of the witness
  • the nature of the proceeding
  • the nature of the evidence that the witness is likely to give
  • the relationship of the witness to anyone who's involved in the case
  • the absence or likely absence of the witness from New Zealand
  • any other ground likely to promote the purpose of the Evidence Act 2006.
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