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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 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.

Is giving evidence optional?

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. A witness summons is a document signed by the court registrar ordering a witness to come to court on a set date. 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 decides 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.

Do I have to give to 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 your choice.

What is the process for giving evidence?

Each side calls witnesses to give their version of events. The prosecution calls it’s witnesses first, and then the defence puts its case after. There are three stages in giving evidence and there are rules on the types of questions that may be asked:

  • Examination-in-chief – this is when the lawyer for one side calls their witnesses and asks them questions in court to support their case. These questions must be open-ended so that they must not suggest the answer. An example of an open-ended question is “did you have anything to drink”?
  • 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. These questions can be more closed or “leading” that is, those needing only a yes or no answer. For example, “you were drunk, weren’t you?”
  • 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. Again, these must be open-ended questions that do not suggest an answer.
  • Trial process – At the beginning of a trial the prosecution will make a speech (“opening submission”) where they set out their case with a summary of the law, evidence and witnesses to be called. Then they will begin calling their witnesses.

What happens when I am a witness?

  • If you are a witness you must wait outside the courtroom until you are called into court so that you are not influenced by the other witnesses’ evidence. You will stand in the witness box and be “sworn in” by the registrar (where you swear on the bible or affirm that the evidence you are about to give “will be the truth, the whole truth and nothing but the truth”). After that you can sit down and give your evidence.
  • Often lawyers will prepare a document called a “brief of evidence” for you –that sets out what your evidence will be – what you will say. This is a guide – it cannot be taken into the witness box or read from and does not need to be memorised. Witnesses have to answer the questions asked of them – unless their lawyer objects to a question and the judge rules that they do not have to answer that question.

What is a “no case to answer” submission?

When the prosecution has finished presenting their case, the defence can make a “no case to answer” submission if they think that the prosecution has failed to prove every element of the charge and literally there is no case for them to answer. For example, the police may have proved it was you, and not someone else driving the car. If the judge agrees that the prosecution hasn’t proven it’s case, the charge will be dismissed. If the judge decides that there is a case to answer, then the defence begins their case by making an opening statement followed by their witnesses.

At the end of a jury trial, the lawyers for each side will sum up their cases (“closing submissions”). 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 such as from behind a screen, from outside the courtroom (in New Zealand or overseas), or by a video recording 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.

Evidence Act 2006, s 103

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

  • the age or maturity of the witness (for example where the witness is a child)
  • 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 type of case
  • 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
  • if the witness is going to be away from New Zealand
  • any other ground likely to promote the purpose of the Evidence Act 2006.
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