Witnesses

If you have pleaded not guilty to a charge and are preparing for a hearing, you will usually need to provide evidence to the court to support your case. You should think about whether there are any witnesses who can give evidence at the hearing. 

 If you have been charged with a serious offence the rules regarding witnesses are different. You should get legal advice as soon as possible. 

​​Who can be a witness?

A witness is a person who saw, heard or experienced something related to the offence you have been charged with.

A witness can also give evidence about a document, photograph or object. Many documents must be tendered (handed up to the magistrate as evidence in the case) through a witness, so you should consider which witnesses you need if you have documents you wish to tender. For example, they may have created the document, or could say that they recognise the place in the photo.

You should contact any witnesses as soon as possible after you have been charged and ask them to write down what they saw, heard or experienced while it is still fresh in their memory.

When you receive the brief of evidence, carefully check the list of witnesses who have given statements to the police. You should think about who can give evidence that supports your case.

If you are not sure of the names of witnesses who could give evidence, you can:

• ask other people who may know these witnesses for their contact details
• contact the police officer in charge of the investigation and ask them if they have the witness's details
• apply internally to the Information Access Unit of the NSW Police for a copy of the police incident report or through GIPA (a fee will apply)
• subpoena records from the NSW Police, including a copy of the police incident report, COPS entries and all other police records about the incident.

To apply for a police incident report or make an access application, go to Requesting information on the Police NSW website.

 You might not have enough time to get details of the witnesses before the hearing date. You should get legal advice. 

What is a witness statement?

A witness statement is a document that sets out what a person will say in court if they are called as a witness. You should carefully read all the witness statements in the brief of evidence. When you're reading the witness statement, you should think about:

• the parts of the witness statement you disagree with
• if there is anything in the witness statement that shows their evidence may be unreliable, for example, was it too dark for the witness to see what they say they saw
• whether there are any important differences in how events are described by different witnesses
• whether there are inconsistencies in what the witness says in their statement.

What about the prosecution's witnesses?

A witness for the prosecution is usually a witness who saw, heard or experienced something which helps the prosecution prove you committed the offence.

In most cases, if the prosecution is going to call any witnesses to give evidence at the hearing, the police should have served the witness's statement on you at least 14 days before the hearing. This may not apply if there has been no order by the magistrate that the police serve a brief of evidence. For more information, see Reading a brief of evidence.

You can contact and speak to a prosecution witness yourself but it is best to tell the officer in charge first and ask them to come with you when you speak to them. This will avoid the risk of anyone suggesting you tried to influence the witness.

If you want to cross-examine (question) a prosecution witness, you should tell the magistrate at the 'reply date' (the mention before the hearing date) you want them to attend court. You will need to mark off the names of the prosecution witnesses that you want to attend on the Listing Advice. If there is no reply date then you should inform the police which of their witnesses you want at the hearing.

Instructions:  Instructions for filling out a local court listing advice.

Sample: Sample local court listing advice.

 If your matter is given a hearing date straight away (without a reply date), you may not have to provide the court with a Listing Advice.

 If a witness for the prosecution does not attend court, the prosecution may want to tender the witness's statement without calling the witness to verbally give evidence. If you are unsure if you should agree to a witness's statement being tendered, you may want to get legal advice before the day of the hearing to make sure you are prepared in case the witness does not attend.

If you do not receive a statement or it was served on you less than two weeks before the hearing date, you should get legal advice.

Do I need to subpoena my witness?

It is a good idea to subpoena all your witnesses, especially if they need to take time off work to attend the hearing. If your witnesses do not attend the hearing, you can ask the court for an adjournment. The magistrate may be less likely to grant an adjournment if your witnesses have not been subpoenaed.

For more information, see Subpoenas​​​​​.

 If the court adjourns your case because your witnesses did not attend court, you may be ordered to pay the prosecution's costs of attending court that day. For more information about what you might have to pay, see Paying costs. ​