Tuesday, 10 September 2013

How to be a five-star witness

Government solicitors are often asked to prepare departmental or other witnesses to give evidence in court or VCAT.  You may not coach witnesses, that is, suggest answers to questions.  But here are some tips that you can provide to them to make their (and your) life easier before what can be a nerve-wracking experience.

The days before

  • Do not discuss your evidence with other witnesses.
  • Review any notes or statements you have made.
  • Find out where the court is and how long it will take you to get there.
  • Find out how long you will be needed for.  Courts normally sit from 10 until 4, with a one-hour break at 1pm.  VCAT listings vary.  Every effort will be made to minimise the time you spend at court, but be prepared to wait.

On the day

  • Bring any statements or notes you have made about the case with you to court. Tell the solicitor which documents you have brought.
  • Choose clothes that show respect for the judge and the court proceedings.  Look professional, dressing appropriately for your position.
  • Make sure there are no sharp or glass objects in your bag (e.g. knitting needles, tweezers, umbrellas).
  • Get to court in good time.  There may be a queue to pass through security.
  • Turn your phone off before you enter the courtroom.

In the minutes before

  • Sit outside the courtroom until it is time for you to give evidence.  Someone will come and get you when it is your turn.
  • Before giving evidence, you will be asked if you wish to take an oath or make an affirmation that your evidence is true.   

Giving evidence

  • The claimant in a civil action or the prosecution in a criminal trial will put their case first. Their witnesses will give evidence and be cross-examined (by asking additional questions).  The witness may then be ‘re-examined’. Once this process has happened, the defence will do the same with its witnesses.
  • The Judge, Magistrate or Member may also ask you questions about your evidence.  You should address the Judge or Magistrate as ‘Your Honour’.  In VCAT, it depends on the seniority of the Member hearing your case:
    • The VCAT President is addressed as ‘Your Honour’
    • Vice Presidents are addressed as ‘Judge’.
    • Members are addresses as ‘Sir’ or ‘Madam’ or as ‘Ms’ or ‘Mr’ and the Member’s surname. 
  • Giving evidence is not a memory test.  You don’t get points for answering every question.  Do not guess or speculate. If you are not sure about an answer, just say so, else you may do more harm than good.  You can’t say, for example, ‘I would have done X’ or speculate about why a person acted in a particular way.
  • Listen to and think about each question before you answer. 
  • Give evidence in your own words.
  • Make your answers as specific as you can.  Do not generalise.
  • If you do not understand a question, you should say so.
  • Do not say what someone else has told you unless you are asked.
  • Explain any technical terms you have to use.
  • Speak clearly so that your evidence can be understood. The microphone in front of you only records your voice. It does not make it louder.  You are giving evidence to the judge, so face them when answering a question
  • You should not look at your notes without permission from the Judge.  If you are having trouble remembering details or accurately answering the questions, ask the Judge for permission before looking at any notes that you made at the time when the events were fresh in your memory.
  • Cross-examination normally takes the form of a series of propositions put to you by the other side’s barrister. If you do not agree with all parts of the proposition, say so.  If you do not know whether a proposition is right, say so.  Don’t just agree with the barrister because you don’t want to seem obstinate.
  • Don’t lose your patience with the other side’s barrister when being cross-examined.  The best witnesses remain neutral and focused. 
  • If a witness has never been cross-examined before, one way a solicitor can help a witness understand how it feels is to engage in a mock cross-examination beforehand, using the type of questioning styles that a barrister would use in court.  This mock cross-examination should not be based on facts similar to the actual hearing.
  • If you qualify as an expert witness (and meet all the requirements for this status), you may give opinions within your expertise.  Otherwise you can only give evidence of facts.

After

  • After you have given your evidence and are excused by the court, you are free to leave. You may stay in the courtroom if you wish, unless you are expected to give evidence again later in the case.

VGSO has a network of experienced advocates who can represent Victorian government clients in all courts and tribunals.  Briefing our in-house advocates, rather than a barrister, can be more cost effective and ensures access to our expertise in specialist areas of Victorian government law.  Having regard to the demands of a particular matter, we can provide advocates ranging from our Special Counsel to solicitors of various seniority.  For more information about VGSO advocates, please contact

Hayley Petrony
Assistant Victorian Government Solicitor
t 9947 3011
hayley.petrony@vgso.vic.gov.au

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