How to present your evidence on the day of your trial

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Evidence is information that can prove what is said in court and assists in establishing whether or not you are guilty of the offence you have been charged with.

As a defendant, you are not required to present evidence (see section 25(d) of the New Zealand Bill of Rights Act 1990). You are not required to prove that you are innocent; it is the prosecutor’s role to prove beyond a reasonable doubt that you are guilty of committing the offence(s) you have been charged with.

Section 25(d) of the New Zealand Bill of Rights Act 1990(external link)

You may choose to give evidence though, if you wish to do so and you believe it is appropriate to do so in your circumstances. You may chose to give evidence yourself, and you may chose to call others to give evidence on your behalf.  

Some examples of why you may choose to give evidence, or call witnesses to give evidence on your behalf, include:

  • it is an opportunity to tell the judge (and jury, if you are being tried by a judge and jury) your versions of events;
  • you may be the only witness to the event, or may have seen or heard something that no one else did;
  • you may be able to explain why you said or did something; or
  • you believe presenting evidence may provide the judge with an opportunity to assess whether you are a truthful and honest person.

Some examples of why you may choose not to do so include:

  • you must give evidence under oath, which means you must tell the truth at all times, even if the truth is incriminating;
  • the Crown prosecutor will be an experienced lawyer who will likely point out the weaknesses in any evidence you give during cross-examination;
  • you will not be able to refuse to answer questions put to you on the ground that the answers you give would likely show that you committed the alleged offence; and
  • everything you, or your witnesses, say in court becomes part of the formal court record and cannot be retracted. This means that if you, or one of your witnesses, say something incriminating, you will not have the opportunity to change what was said, and may not be able to challenge what was said either.

Whatever you decide to do, it is important to know that you are not required to give evidence yourself or to call others to give evidence on your behalf.

Note: presenting evidence can be very challenging and complex. It is recommended that you seek legal advice before attempting to present evidence on your own behalf. Remember, you may be eligible for legal aid and you may be able to get free legal advice from your nearest community law centre(external link)

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Giving evidence yourself

If you decide to give evidence yourself, you will typically be the first defence witness and give your evidence before you call other defence witnesses. You will be required to give evidence under oath or affirmation.

When you are called to testify you will take the witness stand and be sworn or affirmed.

Because there will be no one in front of you asking questions during your examination-in-chief you must plan ahead what you will say. You must rely on your memory rather than reading a prepared statement of evidence. If you wish to look at a document to remember details, you must first ask the judge for permission to do so. You should be prepared to explain what the document is and why you need to look at it. Whether you are permitted to look at this document is a decision for the judge. If you do not get permission, you will not be permitted to have any document that is not an exhibit in the proceedings open before you.

You may also tender as evidence any documents that are admissible during your evidence. You should bring originals of these documents and at least 12 copies for the jury (if relevant), and one each for other counsel, and the judge (15 copies in total).

The Crown will have the right to cross-examine you if you choose to testify. This is typically when the Crown will point out weaknesses in your evidence. Note that you will not be able to refuse to answer questions put to you by the prosecution on the grounds that the answers given would likely show that you committed the offence(s) you have been charged with.

Following cross-examination, you may reply to the issues they raised that require clarification.

Some tips for giving evidence include:

  • Remain calm and speak slowly and clearly
  • Tell the truth at all times. It is your legal duty to tell the truth.
  • If you don’t understand a question put to you by the prosecution, ask for it to be explained more fully
  • If you don’t know the answer to, or can’t remember, something asked by the prosecution, say so. Don’t guess, or make up an answer.

Understanding the difference between giving evidence and making submissions

During your trial you will be heard by the court in only two ways:

  1. as a witness giving evidence from the witness box; or
  2. as an unrepresented defendant making submissions and arguments from the counsel table.

While you are in the witness box, you are a witness giving evidence. You can only give direct evidence. This involves testifying about what you saw, heard, did, received etc only. You cannot testify about what someone else may have seen or heard. All verbal evidence (testimony) is given under oath or on affirmation from the witness box. A witness will not be heard in court except from the witness box. You cannot make any submissions or arguments from the witness box.

A witness can only give evidence, not make submissions. However, once your evidence as a witness has been completed and you have left the witness stand, you can make submissions and arguments from the counsel table. While you are at the counsel table, you are making submissions or arguments to the court as your own advocate. You cannot give evidence from the counsel table.  

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Calling others to give evidence - witnesses

You may choose to call others to give evidence on your behalf. These people are referred to as witnesses. Some witnesses may have been present at the alleged offending, and are therefore able to provide information about what happened, what they saw, and who they saw at this time. Others may be experts, who are called on to provide specialist information about certain aspects of your case.

Ordinary witnesses give evidence on behalf of the prosecution or the defence but will have to answer questions put to them by both sides.

When giving evidence, witnesses are allowed to make statements of fact only. They are not allowed to offer opinions about what decision should be made. Expert witnesses may offer opinions based on their area of expertise but they too are not allowed to offer opinions about what decision should be made.

All witnesses, regardless of where they are appearing from to give evidence, must swear an oath or make an affirmation that the evidence they are about to give is truthful.

The registrar or court crier does this in the courtroom or from the court to the remote site using video conferencing. To swear an oath, the person must have the Bible with them. No Bible is needed if the person makes an affirmation.

The Crown will have the right to cross-examine any witness called on your behalf. 

 Following the Crown’s cross-examination, you may re-examine.

The Law Society has more detailed information for witnesses giving evidence on its website.

Detailed information for witnesses giving evidence [PDF, 281 KB]

Getting witnesses to court

Usually, if an individual is asked to give evidence in a criminal trial they don’t have a choice about whether or not to do so. 

If you consider that the evidence is essential to your case, you can ask the court to summon the witness to give evidence orally at the trial. You can do this by writing to the court directly asking them to issue a summons for your witness. You should include a list of the names, and current contact details, of the witnesses you wish to be summoned. That witness will then be required to come to court and give evidence.

If you have reason to believe that a witness who has been summonsed will not attend court when required to do so, you should tell the court as soon as possible.

Note: you may be required to pay the costs and expenses of your witnesses. For example, the costs and expenses associated with your witnesses travel, accommodation and meals.

Preparing your witnesses for court

The following are useful tips for preparing your witnesses for court:

  • Remind your witness to dress tidily for court.
  • Tell your witness which courtroom your trial is in. If they have been summoned, they will probably already have this information.
  • Remind your witness that they will have to wait outside the courtroom until it is time for them to give evidence.
  • Inform your witness that they will be called (usually by a court attendant) when it is time for them to give their evidence. The court attendant will show the witness into the witness box.
  • Ask your witness to let you know when they arrive at court
  • Encourage your witnesses to go over their evidence before appearing in court. It would probably be helpful for them to think through what happened, the order in which things happened, what other people did, and what they did. (note: this is not relevant to expert witnesses).
  • Consider whether any of your witnesses require an interpreter. For example, if they are not confident speaking English.

How witnesses give evidence

Both you and the prosecution will usually call witnesses to support your version of events. Generally, the prosecution goes first, you then reply.

All evidence must be given under oath or affirmation and will usually be given orally in the courtroom. Once called to testify, each witness will take the witness stand and be sworn or affirmed. You should keep your witnesses out of the courtroom until they have given their evidence. They must not be in the courtroom to hear the evidence of other witnesses.

There are typically three stages in giving evidence:

  • Examination-in-chief. This is when you call up your witness and ask them questions in court to draw out the evidence in support of your case. The Crown prosecutor may object if you ask leading or misleading questions during examination-in-chief.
  • Cross-examination. This is when the prosecutor (the lawyer for the opposing side) asks that same witness questions in court to challenge your case. They may ask leading questions in cross-examination.

You may ask leading questions when cross examining a prosecution witness.

The purpose of cross-examination is to test the observations, recollections and truthfulness of the witness.

Note: if you are going to later dispute something that a witness has said, you need to give the witness a chance to answer the disputed evidence. You are required to do this during cross-examination (required by section 92 of the Evidence Act 2006).

  • Re-examination. This is when you get a chance to question your own witness again, to clarify points that came up during the prosecutor’s cross-examination. You may not ask leading questions.

The purpose of re-examination is to clarify ambiguities raised by the cross-examination or to explain new matters raised for the first time in cross-examination. Re-examination does not permit you to re-open the examination-in-chief or to cross-examine or ask leading questions.

You may find the following tips helpful when asking your witnesses questions. However, it is always important to follow the instructions and guidance of the judge when dealing with evidence. The judge may interject and guide you:

  • Only ask about one issue per question.
  • You can only ask the witness questions, you cannot make statements.
  • Use simple, common words.
  • You should not ask leading questions. Leading questions suggest the answer in them, for example where your witness can only answer “yes” or “no”. Instead, you should frame your questions to draw out information from the witness. Questions starting with “what”, “when”, “why”, or “who” are good starting points to asking non-leading questions.
  • Prepare carefully.

In some circumstances, the judge may direct that a witness may give evidence in an alternative way (i.e. not orally in the courtroom). Other ways in which a judge may permit a witness to give evidence include:

  • Giving evidence from behind a screen in the courtroom;
  • Giving evidence by a video recording made before the trial;
  • Giving evidence from another room in the courthouse; or
  • Giving evidence by video link from somewhere else in New Zealand or overseas.

If you believe it may be necessary for one of your witnesses to give evidence in an alternative way, you should apply to the judge to give this direction by filing a Notice of Application. The judge may also make this direction on his or her own initiative. More information about alternative ways of giving evidence is available in the Evidence Act 2006(external link)

Notice of Application [PDF, 851 KB]

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Offence for misleading justice

Misleading justice is viewed seriously by the courts. Knowingly misleading justice can be considered a criminal offence punishable by imprisonment. Examples are deliberately misleading the court, telling lies and corrupting juries and witnesses. Criminal legislation on offences for misleading justice can be found in sections 108 to 117 of the Crimes Act 1961(external link)

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