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The trial

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 and 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 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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