Note to Witnesses. From Justice K E Lindgren

Transcription

1 Transcription officer Note to Witnesses From Justice K E Lindgren Most people do not look forward to giving evidence in court. A common reason is that the experience is unfamiliar. My aim in writing this note is to give you some idea of what to expect when you give evidence. Waiting outside the courtroom Yon should wait out of hearing distance from the courtroom. This avoids any suggestion that your evidence may have been influenced by what you have heard others say. Except in the case of opinion evidence by experts, a witness s evidence should be just his or her own recollection of what he or she saw or heard. Entering and leaving the courtroom When the Judge enters or leaves the courtroom, it is customary for all to rise and for the Judge and those in the courtroom to exchange short bows. Similarly, when you enter or leave the courtroom, if the Court is sitting it is customary to bow. The courtroom This section tells you about the different parts of the courtroom. The courtroom is divided into the Judge s bench, the Judge s Associate s desk, the witness box, the court officer s desk, the bar table, solicitors tables and the public gallery, as follows: Judge s bench Associate s desk Witness Box Bar table Court Officer Solicitor s table Public Gallery

2 The Judge s bench is where the Judge sits just below the Commonwealth coat of arms on the wall. The Judge s Associate sits just below and in front of the Judge. The barristers (I include in the term barrister any solicitor who is conducting a case, that is, acting as advocate) sit at the bar table. A little distance to the rear of the bar table is a table for solicitors who instruct the barristers. At the rear is a gallery of seats for the public. On one side is the witness box from which you will give your evidence. Nearby is the desk of the court officer who performs various formal functions during a hearing. On the other side of the courtroom is a desk for the transcription equipment and officer. In some cases computer technology is used to provide a real time transcript of the oral evidence. In these cases, the numerous documents involved in the case have been imaged so that they can be called up quickly and viewed on the computer screen instead of having to be handled physically. Going to the witness box The court officer will usher you to the witness box. When you enter the witness box, just stand there. The officer will ask you whether you prefer to take an oath to tell the truth or to make an affirmation to do so, and will hand you a laminated card. An oath has religious significance and an affirmation does not. Whether you swear to tell the truth by taking an oath or affirm that you will tell the truth by making an affirmation, is entirely a personal matter for you. Some witnesses choose the oath and some choose the affirmation. It is important for you to understand that your evidence will be regarded in precisely the same way, whichever choice you make. The laminated card has the form of oath on one side and the form of affirmation on the other. The two sides of the card are as follows; EVIDENCE ACT 1995 (Cth) OATH BY WITNESS I swear by Almighty God that the evidence I shall give will be the truth, the whole truth and nothing but the truth. [or the person taking the oath may PROMISE] [or the person may name a god recognised by his or her religion] EVIDENCE ACT 1995 (Cth) AFFIRMATION BY WITNESS I solemnly and sincerely declare and affirm that the evidence I shall give will be the truth, the whole truth and nothing but the truth. Once you have told the court officer whether yon will swear or affirm, the court officer will either invite you to read out the appropriate side of the card or to repeat its words after he or she reads them out in sections. Note that if you want to take an oath but not according to the Christian religion, the form of oath on the card allows for this possibility. Again, your evidence will be regarded in precisely the same way, no matter which oath you take. Once you have taken the oath or made the affirmation, the Judge will invite you to sit down on the chair in the witness box. You will find a drinking glass and a carafe of water within reach. Your evidence in chief Your evidence in chief is your evidence in support of a party s case. It is the first evidence that you give. In the Federal Court, evidence in chief is almost always given on affidavit. An affidavit is a written statement of evidence which the witness has sworn or affirmed to be true. You have probably made an affidavit in this proceeding. If so, the original of your affidavit will be on the

3 Court s file and the legal representatives of the parties will have copies. Perhaps you have a copy of your affidavit too. If, as is most likely you have made an affidavit, probably the first thing that will happen after you have sat down in the witness box is that the barrister who has called you to give evidence will ask you questions along the following lines: What is your full name? What is your address? Have you made an affidavit dated... in this proceeding? Ordinarily, there will be no more evidence in chief from you because it is in your affidavit which everyone has read. If your evidence in chief is not an affidavit, you will give it by answering questions which will be asked by the barrister who called you. This could be a long or short process, depending on how much evidence you are to give. If a witness s evidence is to be extensive, usually much time in the courtroom will be saved if the evidence is given in an affidavit rather than orally in the witness box. Sometimes, even where a witness s evidence is in affidavit form, a barrister obtains permission from the Judge to supplement the affidavit having by a witness give oral testimony on a topic which the barrister thinks is not covered in the witness s affidavit In such a case, as in the case where all the evidence of a witness is to be given orally, the question and answer procedure is followed. In the next section I will say more about the answering of questions. Your cross-examination Cross-examination consists of questions asked of a witness by the barrister who did not call that witness to give evidence. A common purpose of cross-examination is to test and reduce the impact of the witness s evidence in chief. Another reason is to get evidence which the witness did not give in chief and which may favour the cross-examiner s client Whether cross-examination is long or short depends on many factors. For various reasons, cross-examination can give rise to difficulties. Yet where the cross-examiner and the witness both understand and perform their roles properly, the process should be satisfactory from all viewpoints, including that of the witness. The following hints should help you: (1) The most important hint by far is this; listen carefully to the whole of the question, think about it and answer it by saying no more than what is necessary to answer it Some witnesses try to answer a question they thought the cross-examiner was going to ask or should have asked. Some witnesses try to answer what they believe will be the next question. Some witnesses listen only to the beginning of a question, make up the rest for themselves, then answer the question they have thought up. Some witnesses, rather than answer the question, try to use it as a springboard to make a speech in favour of a party s case. Some witnesses commence answering before the question is finished. Doing any of these things detracts from a witness s testimony and results in a witness spending more time (sometimes much more time) in the witness box than is necessary. (2) If a question can be wholly and truthfully answered yes or No answer it in that way. Only if it cannot be wholly and truthfully answered yes or no should you say any more. As always, the test is what is necessary to answer the question that has been asked, not what is

4 necessary for you to tell everything you might like the Court to hear. Only if you cannot wholly and truthfully answer the actual question asked Yes or No, should you say something like Yes with a qualification or Partially yes and partially no or even I cannot answer that question (I hope you cannot answer the question, Have you stopped beating your spouse? ). (3) If you do not hear the whole of a question or are not sure that you did, ask for it to be repeated. (4) If you cannot understand a question, say so and the barrister will try to express it more clearly. (5) A convincing witness is one who tries to answer each question frankly and truthfully to the best of his or her recollection. This may involve making concessions where appropriate (e. g. Q. Do you concede that your recollection of the actual words spoken in this conversation that took place fifteen years ago could be faulty? A. Yes, of course ). (6) Never argue with or question the cross-examiner. Under our system, only the cross-examiner asks the questions and only the witness gives the evidence. They are not permitted to switch roles. (7) If you have a copy of your affidavit, take it with you into the witness box but do not read it or even open it in front of you unless you are asked to do so. A barrister is entitled to have you answer questions to the best of your ability from your current recollection. It can be important for the court to know the nature and extent of your present recall of events. If you cannot remember something or if your recollection is hazy, do not be afraid to say so. No-one can remember everything. (8) You may be asked to refer to a paragraph in your affidavit or an annexure to it The following comments will help you to know something about the various parts of your affidavit and to find them easily. The body of your affidavit is divided into numbered paragraphs. After the body of the affidavit come the annexures. These are copies of documents that are annexed at the back of the affidavit and are referred to in the body of it. They are usually identified by the letters of the alphabet beginning with A. Some solicitors prefer to use the initials of your name followed by a numeral such as WAL 1, WAL 3, WAL 3 and so on. In the case of a long affidavit, valuable time can be wasted in locating an annexure if all the pages of the affidavit are not numbered, e.g. the second page of annexure G which is about a third of the way in from the back of the affidavit. Accordingly, the Court s Rules require that every page be numbered, starting with the first page of the body of the affidavit and ending with the last page of the last annexure. So if you are asked to turn to the second page of annexure G which is page 89 of your affidavit, you will know what to do; just turn to page 89. (9) If you are feeling ill or weary and would like a break for a few minutes, ask the Judge. (10) All your evidence is to be sound recorded through the microphone in front of you. Gestures, such as a nodding of the head, are not recorded. Try to speak clearly and audibly (do not answer Mmm ) so that everything you say will be recorded.

5 (11) A minor point - if you are turning over the pages of a document, such as your affidavit, try to avoid brushing it against the microphone. (12) A barrister other than the one who asked you the question may object to a question. He or she should do so by standing up and saying clearly and audibly I object immediately after the question is asked. If this happens, do not answer the question: just remain silent until the Judge tells you whether to answer it or not. It might take some time for the barristers to address the Court about whether the question is a proper one that must be answered. If the Judge decides that the question is a proper one and directs you to answer it but you have forgotten what the question was, ask the Judge if the question could be repeated. (13) Occasionally it is better that the barristers argument about a question take place in the absence of the witness. In such a case, the Judge will direct you to leave the courtroom while the argument takes place and the court officer will ask you to return in due course. (14) Probably yon will not need to address the Judge or the barrister who is asking you questions. But if you need to do so, the appropriate form of address is Your Honour for the Judge and Mr. or Ms. for the barrister (you will have heard the Judge state the barrister s name). (15) Your cross-examination may be interrupted by one or more adjournments (for lunch or overnight for example). If so, during the adjournment you should not discuss with anyone the evidence you have given or are yet to give. I need to be confident that your evidence has not been affected in any way by conversations with other people. Your re-examination Sometimes the barrister who called you to give evidence will wish to re-examine you, The permissible purposes of re-examination are very limited. Therefore, re-examination, if it occurs at all, is usually quite short. Re-examination is permitted to clear up ambiguities or uncertainties arising out of the cross-examination. Leaving, the witness box Once your evidence is finished, the barrister who called you to give evidence will ask the Judge to excuse you from remaining at the Court. Almost always the Judge will do so. As you step down from the witness box, remember to take with you anything that you brought with you (such as spectacles or a copy of your affidavit). Take care not to take away anything you did not bring with you, such as a document that was handed to you while you were giving evidence. Once the Judge releases you, you are free to leave the Court or to remain in the public gallery, as you prefer. The evidence that you have given is publicly available (except in the very rare case where the Court has made a suppression order ) and once your evidence is finished you may tell others what evidence you have given. But do not discuss your evidence with someone who is yet to be a witness: it is best that there be no suggestion that any evidence yet to be given has been influenced by discussion with others.

6 Sitting hours Ordinarily the Court sits from am to pm, when a luncheon adjournment commences, then from pm to pm, when the Court adjourns to the next hearing day. No morning, or afternoon tea adjournment is taken. Cafeteria The closest and most convenient place for lunch is the cafeteria on level 14 of the Law Courts building. It is open to the public from 7:00 am to 5:00 pm. Smoking The Law Courts building is a designated no smoking area. Smoking is not permitted in any part of the building at any time.