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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 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.
  • 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.
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