Evidence in Chief

Preparing your witness for the battle ahead

In Australia, witness testimony typically unfolds in three stages: evidence in chief, cross-examination, and re-examination, with evidence in chief serving as the witness’s account of events. In civil jurisdictions, lay witnesses often present their evidence via affidavit, a statement made under oath detailing their version of events and attaching relevant documents. Affidavits must adhere to strict rules and accuracy to withstand cross-examination and maintain credibility in court.

In this episode, Fiona discusses:

• the evidence of witness is given in three stages:
  • Evidence in chief
  • Cross-examination
  • Re-examination
• what an affidavit is, and tips for how to get the best affidavit from a witness
• the rules for what evidence a witness can give in Australian jurisdictions
• how an incorrect, inconsistent affidavit can have detrimental consequences for your case.

Video script

Today I’m back on Sydney Harbour, on a glorious spring day. I’m outside Luna Park, a heritage listed n Art Deco style amusement park which opened on the harbour on 4 October 1935 and continues to operate today.

This week I’ve been preparing affidavits from lay witnesses in Supreme Court Equity division proceedings.

In most jurisdictions in Australia, the evidence of a witness is given in three consecutive stages:

1. Evidence in chief: is a witness’s version of events.
2. Cross-examination: is where the opponent tests the witness’ evidence through an in depth questioning about their evidence in chief and any other matters of relevance to the proceedings.
3. Re-examination: is an opportunity for the party calling the witness to ask him/her further questions to clarify any issues that were unclear during cross examination. There are strict limits to what can be covered with a witness in re-examination. It is not an opportunity to fix up what has gone wrong with your witness in cross examination.

Today we are confining the topic to evidence in chief.

In most civil jurisdictions in Australia, rather than asking questions, the evidence of a lay witness in chief is given by affidavit.

An affidavit is a statement made under an oath which sets out all of a witness’ evidence. It contains that witness’ version of events and annexes all of the documents that are relevant to that witness. It is essential to get a lay witness’ evidence right. This can be time consuming and at times frustrating. This is especially the case when it involves complex technical evidence regarding the operation and performance of machinery as is the case in many manufacturing disputes.

An affidavit must comply with complex rules of evidence. In Australia there are rules which set out what a witness can give evidence of. These rules are applied differently in different jurisdictions throughout Australia with NSW being one of the stricter jurisdictions.

The general rule is:

A lay witness can give evidence of things they saw, heard, touched, smelt, and/or felt.

They cannot give evidence about:

• their conclusions about what happened
• what someone told them happened
• their opinion about what happened, or
• the contents of a document.

Most evidence of conversations must be in first-person direct speech (E.g., ‘I said’, ‘she said’).

It is crucial to get this document right. I can’t emphasise this enough.

It is worth investing the time and care needed to ensure it is completely accurate in every detail. The affidavit will form the basis on which the witness is cross-examined.

An affidavit where the detail is incorrect, inconsistent or which has avoided difficult aspects of the evidence rather than give an explanation for them, will quickly get a witness into trouble in the witness box and will be seized on by your opponent to attack the witness’s credibility and the version of events put forward by your client.

In my experience, European witnesses underestimate the rigours of cross-examination and do not appreciate the importance of telling the story accurately and in detail in their affidavits. This has to be insisted on when preparing the initial witness affidavits. It is very difficult, if not impossible, to try to compensate for inadequate evidence later.

Trying to take an affidavit from a witness over the phone or via Skype/Zoom in a couple of hours does not generally produce the best affidavit. For important witnesses, a face-to-face meeting where they have set aside the time needed to produce an affidavit and are forced to give their full attention to their evidence is invaluable even if that means travelling to see them. There are obvious proportionality considerations to be borne in mind: the size of the case and the amount of money involved are always factors to be considered in determining the lengths to be gone in preparing the evidence, but in any matter of reasonable size, it is difficult to underestimate the value of a face to face meeting with the potential witness.

It is so important to prepare your witnesses for the battle ahead.