Gathering evidence

Before you go to court you should consider how courts and tribunals decide cases so you can prepare your evidence.​

    ​How courts an​​d​​​ tribu​​nals de​​cide ​​ca​​ses

    During a hearing each party presents evidence to support their case. Each party will also present legal arguments. This is known as submissions where they give their view of the law that applies to the case.

    A court or tribunal has to do two things to decide the outcome of a case:

    1. Make 'findings of fact' about the dispute based on the evidence presented during the hearing of the case. When different versions of what happened have been given in the case, the court will decide which version it prefers.

    2. Decide the correct law to be applied to the facts

    Alert icon  It is important to remember that a decision must be based on the evidence presented at the hearing. As a party to a case, it is not enough for you to say that you know or believe something to be true. You need to present evidence to support your belief.


    Evidence is information a party presents to prove their case. There are two types of evidence:

    • Oral evidence
    • Exhibits

    Oral Evidence

    Oral evidence may be given verbally by a party to the case, a witness to events or an expert. This evidence is usually given by the person attending court, entering the witness box, taking an oath or affirmation, and answering questions about the circumstances of the case. In some cases, evidence by a party, witness or expert may be given in writing through a written statement or affidavit.

    If you want to make sure a witness or an expert attends court to give evidence in your case, you should issue a subpoena to attend to give evidence (pronounced supeena). A subpoena to attend to give evidence is a court order telling someone they have to attend court at a particular time and date to give evidence in a hearing. If the person does not attend court, a warrant can be issued for their arrest.


    Exhibits are documents or objects used to support a case. For example, photographs, video footage, bank statements, invoices, repair quotes, receipts, medical records, weather reports and business records.

    If you want certain documents from a person or organisation, you can issue a subpoena to produce. A subpoena to produce is a court order telling someone to produce the documents you have requested to the court

      The strongest evidence is usually evidence from an independent witness (not a family member or friend) who saw what happened, and exhibits created at the time the events in dispute happened. 

    Rules of evidence

    The rules of evidence are set out in the Evidence Act 1995 (NSW). The Act sets out what evidence may be considered by a court when it makes a decision in a case and is meant to ensure that only fair and reliable evidence is considered.

    Evidence that can be considered is called 'admissible evidence'.

    The rules of evidence can be difficult for a person without a lawyer to understand. Some important rules of evidence include:

    •  evidence must be relevant to the case
    • evidence must not be 'hearsay'. This means that witnesses can only give evidence about what they saw or heard, not what someone else told them happened
    • evidence must not be an opinion. This means that a person can't give evidence of a belief or judgment that is not based on any proof or certainty (unless the witness is an expert). For example, an opinion would be to say: "The defendant signed the contract so he must have known about the interest rate".

    Handy hint icon  The rules of evidence are followed in courts, except in the Small Claims Division of the Local Court. The rules of evidence are not generally followed in tribunals.

    Burden of proof

    The person who starts a case, usually the prosecutor or plaintiff, has the responsibility to prove their case. This responsibility is sometimes called the 'burden of proof' or the 'onus of proof'. A prosecutor or plaintiff does this by presenting evidence to the court.

    In a civil case, for a plaintiff to win they must prove 'on the balance of probabilities' that their claim is true.

    In a criminal case, for an accused person to be found guilty of a criminal offence, the prosecutor must prove 'beyond reasonable doubt' that the person committed the offence. This is a higher standard of proof than for civil cases.

    While it is up to the plaintiff or prosecutor to prove their case, this doesn't mean that a person defending a case shouldn't present their own evidence. For example, in criminal cases, sometimes a defendant has to show sufficient evidence to raise a defence and in civil cases having evidence that contradicts the plaintiff's claim will be helpful. ​​