Gathering Evidence from Lay Witnesses in Australian legal proceedings

How to call an Australian or foreign witness

In Australia, parties must call relevant witnesses to present evidence in court, as failure to do so without a valid reason can lead to adverse inferences.

While witnesses can be compelled to testify, persuading them to cooperate voluntarily is preferable, especially when dealing with a reluctant local witness. Overseas witnesses often cannot be compelled and require careful handling and persuasive techniques.

In this episode, Fiona discusses:

• the power of a credible witness to your case
• three types of witnesses
• conscientious objectors
• can foreign witnesses be subpoenaed?

Video script

In Australia, parties to a court case are required to call as witnesses all people who can give relevant evidence to the facts in dispute. If a witness who is obviously a key/relevant witness for your client is not called to give evidence and you cannot give the court a good reason why that witness has not given evidence, then, it is likely that the court will be asked by your opponent to draw an inference that that witnesses’ evidence would not have assisted your client’s case. This can be a powerful inference, especially where you might expect that witness to corroborate your client’s version of events.

The fact that a witness simply does not want to get involved or is on holiday or no longer works for you, is not considered by the court to be a good reason not to call them.
All witnesses who are physically within both Australia and New Zealand can be compelled by the court to give evidence. It is always better to have convinced a witness to help rather to have forced them.

In my experience, there are three types of witnesses:

• There are witnesses who are helpful, and happy to help.
• There are witnesses who are concerned about upsetting the other side. Often they’re in business with both sides of the transaction. They can be very dangerous witnesses and need to be handled carefully.
• There ar witnesses who are ‘contentious objectors’. They do not want to get involved in litigation, they do not want to help, and they do not want to be involved in court proceedings.

In Australia, witnesses can be subpoenaed to give evidence. This is an order made by the court compelling them to appear in the court case.

Handling a reluctant witness who is only giving evidence under subpoena is dangerous and needs to be handled very carefully. A far better approach is to be creative in your ways to persuade people to help.

There are many ways to do that, and often it’s simply a matter of explaining the process and explaining what their involvement will be.

Overseas witnesses cannot be compelled to give evidence in the same way as a witness in Australia can, so there is an art to convincing an unwilling overseas witness to come to Australia to give evidence in court.

Sometimes it can be just a question of how you sell it. Creativity can be a wonderful thing.