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Witnesses in the Magistrates' Court

Who is a witness?

A witness is a person who has information which may be useful in a case being heard in a court. This information is called evidence. Giving evidence is sometimes called testifying.

See Witnesses—Who is a witness?

Witness to signing a document

A witness can also be someone who watches someone sign a legal document.

See Witnessing documents.

Witness statements

Police may question a witness to determine whether they have any information that could be used as evidence for a court hearing. The police will usually type up a draft statement which the witness will then review and sign.

The statement could be drafted in the form of a sworn affidavit. Witness statements must include the witness's name and address. Witnesses are warned about the penalties for perjury. These witness statements then become part of the brief of evidence.

Witnesses must be named in the preliminary brief

The preliminary brief has to contain a list of any witnesses that the prosecution intends to call on to give evidence. The prosecution may decide to add to this list later, but they have an ongoing responsibility to disclose this sort of information to the accused. They can refuse to disclose some information but they must notify the accused and give reasons for their refusal.

The accused may seek an order from the magistrate for this information to be disclosed.

See ss. 37, 42—Criminal Procedure Act 2009 (Vic)(opens in a new window).

Protection of witness details

The prosecution must not disclose a witness's address or phone number. This protection extends to any documents that may disclose the business or private address of a witnesses. The prosecution must delete a witness's contact details from a document before it is made available to the accused.

Prosecution may ask for an exception to be made

The informant can make an exception if they believe that the disclosure of the phone number or address is relevant to the offence and will not pose a risk to the physical safety or welfare of any person.

Accused may apply to a magistrate for disclosure

The accused may apply to a magistrate if they want access to a witness's contact details. The magistrate will make a decision by weighing up any risk to safety against the interests of justice. More specifically the magistrate will consider the witness' right to privacy and the right of the accused to properly prepare for their hearing.

Expert witnesses

If an accused person wants to call an expert witness to the court hearing, they have to serve a copy of the expert witness statement before the hearing.

Witness as an alibi

An alibi is someone who claims that the accused person was somewhere else at the time that a crime was committed and so could not possibly have committed the offence.

The accused person cannot call on a witness to give evidence of an alibi unless they file and serve a notice of alibi. This notice has to include the time and place of the alibi and if known, the last known name and address of this witness.

A document could also be an alibi, such as a plane ticket, that establishes that the person was in a particular place.

See s. 51—Criminal Procedure Act 2009 (Vic)(opens in a new window).

See Form 13—Witness summons—Magistrates' Court Criminal Procedure Rules 2019 (Vic)(opens in a new window).

Witness summons

The court may compel a person to attend court to give evidence or to produce a document. To do this, the court will serve a summons on the witness. If the witness fails to appear in court on the date of the hearing, the court may issue a warrant to arrest them and bring them before the court.

See s. 336—Criminal Procedure Act 2009 (Vic)(opens in a new window).

See s. 43—Magistrates' Court Act 1989 (Vic)(opens in a new window).

See Form 14Notice of Alibi—Magistrates' Court Criminal Procedure Rules 2019 (Vic)(opens in a new window).

Protected witness

Some witnesses, usually a family member in a family violence matter or the victim of a sexual offence, are protected by the court from being cross examined by an accused person.

See s. 354—definition of a protected witness—Criminal Procedure Act 2009 (Vic)(opens in a new window).

Child witness

The child witness service is a system of support for children who are required to give evidence as witnesses. It is based in the Melbourne court precinct and is staffed by psychologists and social workers. The service enables children to give their evidence remotely, in a child-friendly environment away from the courtroom and with the support of specialists.

See Victorian Government Victims of Crime Service —Child and Youth Witness Service(opens in a new window).

More information

Legislation

Criminal Procedure Act 2009 (Vic)

  • s. 42(3)—prosecution must give reasons to accused if they refuse to disclose certain information
  • s. 48—disclosure of witness phone and address details
  • s. 50—accused must file and serve a notice if they intend to have an expert witness at their hearing
  • Part 8.2—witnesses (in sexual offence cases only)
  • s. 336—Subpoenas and witness summonses

See Criminal Procedure Act 2009 (Vic)(opens in a new window).

Evidence Act 2008 (Vic)

  • s. 177—certificates of expert evidence

See Evidence Act 2008 (Vic)(opens in a new window).

Magistrates Court Act 1986 (Vic)

  • s. 43—witness summonses

See Magistrates' Court Act 1989 (Vic)(opens in a new window).

Victims' Charter Act 2006 (Vic)

  • s. 14—victim's right to privacy

See Victims' Charter Act 2006 (Vic)(opens in a new window).

Magistrates' Court Criminal Procedure Rules 2019 (Vic)

  • Form 13—Witness summons
  • Form 14—Notice of Alibi

See Magistrates' Court Criminal Procedure Rules 2019 (Vic)(opens in a new window).

For more details see Witnesses.

Reference

Magistrates' Court of Victoria

The Magistrates' court website has a publication to explain the procedure for witnesses who have been summonsed to appear in court.

See Magistrates' Court—When you receive a witness summons(opens in a new window).

Judicial College of Victoria

This site has information to assist the court staff with the laws of court procedure. Criminal procedure is detailed in Victorian Criminal Proceedings Manual.

See Judicial college of Victoria—Victorian criminal proceedings manual—Ongoing disclosure—3.5.3(opens in a new window).

Victorian Government victims of crime service

The website has information and a publication to explain the specialist child witness service which allows children to give their evidence remotely with support.

See Victorian Government Victims of Crime Service—Child and Youth Witness Service(opens in a new window).

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