What is a witness?
A witness is someone who can provide evidence relevant to a case being dealt with in court. In other words, they have seen, heard or otherwise observed something that may assist a court in deciding a case.
A witness might be called to court to give evidence in a range of cases, including civil, family and criminal cases. The information here deals with appearing as a witness in criminal cases, however, many of the general principles about apearing as a witness are the same, no matter what type of case it is.
Where can I get general information about appearing as a witness?
The Department of the Attorney-General website has some general information about appearing as a witness.
How is a witness identified in criminal cases?
Usually, while police are investigating an alleged offence, they try to locate any witnesses who may be able to assist in their investigation and who may later be able to attend court to provide evidence about the offence.
Witnesses may also be located by the person charged with a criminal offence, to assist them in the presentation of their defence in court.
Do witnesses appear in court in every criminal case?
No, witnesses are generally only required to attend court if the person charged with the offence pleads not guilty and is going to a trial, or there needs to be a trial of the issues before sentencing. In these cases, there are facts that are in dispute and evidence, including evidence from witnesses, must be presented to the court so the court can reach a decision about those facts. In criminal cases, the evidence of witnesses can, therefore, assist a court in determining whether an accused is guilty or not guilty, or the facts on which they will be sentenced.
Do I have to attend court if I am a witness?
If you are a witness in a case, the prosecution or the defence (whichever one wants to call you to to give evidence) will usually issue a summons to require your attendance at court. The summons will state a date, time and place for your attendance.
Alternatively, you may simply be asked to attend court. This is more likely if you know the accused and are being called as a witness for the defence and the accused is confident you will attend court.
If you are a prosecution witness you will most likely be served with a summons, which requires you to attend court.
Do I have to attend on the date specified in the witness summons?
The date specified in the summons will usually be the first day of the trial, however, this may not be when the court is ready to hear your evidence. Therefore, as soon as you receive a summons, it is important to contact the person who has issued it to you, to check more precisely when you will be required to attend. If you do not contact anyone before the trial or you are not given any alternative time for attending, you should attend court on the date and at the time specified in the summons.
What if I do not attend court in response to a witness summons?
If you do not attend court at all in response to a summons, a warrant may be issued by the court for your arrest. You may then be arrested by police and brought to the court in custody to give your evidence.
What if I am appearing as a witness for the prosecution?
Prosecutions of criminal cases are dealt with by different organisations, depending on the nature of the charge. A prosecution of a state offence is dealt with by the police if it is being heard in the Magistrates Court and by the State Director of Public Prosecutions if it is being heard in the District or Supreme Court. The Commonwealth Director of Public Prosecutions deals with prosecutions of all federal offences, no matter which court they are being heard in.
There is detailed information under "Witnesses" on the Victims of Crime website which is of use if you are appearing as a witness for the prosecution in any case.
There is also information on the State Director of Public Prosecutions website. This information is also relevant to prosecutions dealt with by the police or by the Commonwealth Director of Public Prosecutions.
What if I am appearing as a witness for the defence?
The information you need in relation to appearing as a witness for the defence is very similar to the information above regarding appearing as a witness for the prosecution. The only significant difference is that you need to contact the accused or their lawyer instead of the prosecutor, to check when you need to attend court.
Do I get paid for appearing as a witness?
You may be able to claim some expenses for attending court. You should attend the Court Registry office after your appearance to request payment of expenses.
There is information on the State Director of Public Prosecutions website about claims for witness fees, expenses and loss of income. This information can also apply where you are called as a witness by the defence.
Last reviewed: 21/12/2011