If you have entered a plea of not guilty to your charge or charges, your matter will be listed for a trial. If your matter is being heard in the Magistrates Court, your matter will be presided over by a magistrate, who will make the decision as to whether you are guilty or not guilty.
If your matter is being heard in the District Court, your matter will be presided over by a judge and a jury will make the decision as to whether you are guilty or not guilty (unless you have been granted a judge alone trial).
One major decision you will need to make for your trial is whether or not you will give evidence. Your criminal defence lawyer will be able to advise you on this, to ensure your trial has the best chance of success.
Whatever route you choose to go, here’s what you should know about your legal rights, obligations, and the advantages and disadvantages of giving evidence in court.
Is there a legal obligation for me to give evidence?
There is no legal obligation for you to give evidence at your criminal trial.
However, in some circumstances, giving evidence is necessary in order to raise certain defences. For some defences, such as the defence of self-defence or provocation, you would generally need to give evidence in order to tell the court what you were thinking at the time and why you did what you did. Therefore, although you are not obligated to give evidence, in order to properly argue that defence you will need to provide evidence.
You may choose to give evidence, or choose not to give evidence, for a variety of reasons.
You should consider your criminal defence lawyer’s advice on this matter, but ultimately, the decision is up to you as to whether or not you give evidence at your trial.
In some circumstances, the decision to give or not give evidence is not made until the conclusion of the prosecution case, after we hear all of the evidence against you.
If you are giving evidence, you will be asked to take either an oath or an affirmation to tell the truth.
Should I give evidence?
There are advantages to giving evidence. The most obvious one is that it will give you the opportunity to give your side of the story, and/or an alternative version of events, and/or to deny the offence or offences you are on trial for.
This is particularly useful if you have a good explanation for your actions. The magistrate/judge/jury would then need to consider both the prosecution and defence case, and decide whether the prosecution have proved their case beyond a reasonable doubt. Sometimes, your side of the story/alternative version of events/denial of the offending will be enough to raise a reasonable doubt.
A disadvantage of giving evidence is that you open yourself up to cross examination. Your lawyer will ask you some questions first, and that will be your opportunity to give your version of events. Then, the prosecutor has the opportunity to ask you some questions in cross-examination. As defence lawyers, we cannot control what the prosecutor asks you, other than to object to certain legally questions, and you must answer their questions truthfully under oath or affirmation.
Some people can get very stressed when giving evidence, particularly when under cross examination, and you may say something that you don’t mean to say, which can end up helping the prosecution case.
If you choose to give evidence, you will usually be called as the first witness for the defence.
You can call other defence witnesses, even if you are not giving evidence yourself.
For example, you may wish to call character evidence if you have no criminal record.
Your lawyer will speak to you before trial and during trial as to whether or not you will give evidence.
Prior to trial, a proof of evidence will be prepared, which is your statement giving your version of events. This proof of evidence is for your lawyer’s use only, and will not be provided to the prosecution or the court. It will be used to prepare for cross examination of the prosecution witnesses. If you are giving evidence, it will also be used to guide the questions that we ask you, as we will already know your answers to them.
Get expert legal advice from our Perth defence lawyers
It is important to get some legal advice about giving evidence if you are representing yourself at trial. If we are representing you at trial, we will give you ongoing advice in relation to this.
Please contact our criminal defence & traffic lawyers Arina or Yasmin at Chambers Legal here or on (08) 9500 8915 or [email protected] if you would like some advice on giving evidence in court.