Evidence

A witness is a person who saw, heard or experienced something related to the offence you have been charged with.

A witness can also give evidence about a document, photograph or object. Many documents must be tendered (handed up to the magistrate as evidence in the case) through a witness, so you should consider which witnesses you need if you have documents you wish to tender. For example, they may have created the document, or could say that they recognise the place in the photo.

You should contact any witnesses as soon as possible after you have been charged and ask them to write down what they saw, heard or experienced while it is still fresh in their memory.

When you receive the brief of evidence, carefully check the list of witnesses who have given statements to the police. You should think about who can give evidence that supports your case.

If you are not sure of the names of witnesses who could give evidence, you can:

• ask other people who may know these witnesses for their contact details
  
• contact the police officer in charge of the investigation and ask them if they have the witness's details
  
• apply internally to the Information Access Unit of the NSW Police for a copy of the police incident report or through GIPA (a fee will apply)
  
• subpoena records from the NSW Police, including a copy of the police incident report, COPS entries and all other police records about the incident.
  

To apply for a police incident report or make an access application, go to Requesting information on the Police NSW website.

You might not have enough time to get details of the witnesses before the hearing date. You should get legal advice. 

A witness statement is a document that sets out what a person will say in court if they are called as a witness. You should carefully read all the witness statements in the brief of evidence. When you're reading the witness statement, you should think about:

• the parts of the witness statement you disagree with
  
• if there is anything in the witness statement that shows their evidence may be unreliable, for example, was it too dark for the witness to see what they say they saw
  
• whether there are any important differences in how events are described by different witnesses
  
• whether there are inconsistencies in what the witness says in their statement.

A witness for the prosecution is usually a witness who saw, heard or experienced something which helps the prosecution prove you committed the offence.

In most cases, if the prosecution is going to call any witnesses to give evidence at the hearing, the police should have served the witness's statement on you at least 14 days before the hearing. This may not apply if there has been no order by the magistrate that the police serve a brief of evidence. For more information, see Reading a brief of evidence above.

You can contact and speak to a prosecution witness yourself but it is best to tell the officer in charge first and ask them to come with you when you speak to them. This will avoid the risk of anyone suggesting you tried to influence the witness.

If you want to cross-examine (question) a prosecution witness, you should tell the magistrate at the 'reply date' (the mention before the hearing date) you want them to attend court. You will need to mark off the names of the prosecution witnesses that you want to attend on the Listing Advice. If there is no reply date then you should inform the police which of their witnesses you want at the hearing. 

Instructions: Instructions for filling out a Local Court listing advice.

Sample: Sample Local Court listing advice.

If your matter is given a hearing date straight away (without a reply date), you may not have to provide the court with a Listing Advice.

If a witness for the prosecution does not attend court, the prosecution may want to tender the witness's statement without calling the witness to verbally give evidence. If you are unsure if you should agree to a witness's statement being tendered, you may want to get legal advice before the day of the hearing to make sure you are prepared in case the witness does not attend. 

If you do not receive a statement or it was served on you less than two weeks before the hearing date, you should get legal advice.

It is a good idea to subpoena all your witnesses, especially if they need to take time off work to attend the hearing. If your witnesses do not attend the hearing, you can ask the court for an adjournment. The magistrate may be less likely to grant an adjournment if your witnesses have not been subpoenaed.

For more information, see Step by step guide - Subpoenas​​​​​.

If the court adjourns your case because your witnesses did not attend court, you may be ordered to pay the prosecution's costs of attending court that day. For more information about what you might have to pay, see Paying costs. 

You or a witness can take photos of the location of the incident or of objects related to the offence, such as damage to a car. You may also want to take photos that show signs, obstructions, hazards or anything else that might help your case. If you were injured during the incident, you may want to take photos of your injuries.

If the photo was taken on a mobile phone or a digital camera, it is a good idea to get a good quality print out of the image. If you cannot do this, you may be able to use as evidence the phone or digital camera itself and the images it contains. Make sure the photo is still on your mobile phone or digital camera before you tender it as evidence.

If you were stopped by a police officer in a police car, the incident may have been recorded on an In-car Video (ICV). ICV is video footage recorded by video cameras in some police cars. The ICV records images and sounds. It can also record a conversation you had with a police officer.

Police officers who have ICV equipment in their cars must record any vehicle that they follow and intend on stopping. Once the police officer stops you, they must tell you if they are using the ICV.

If you were told that the incident was recorded, you may want to view this footage before you go to court. You should contact the officer in charge or the prosecutor dealing with your case and make an appointment to view the footage.

If you haven't had a chance to view the ICV before or on the day of court, you may be able to ask for an adjournment to get some more time. 

 If you want to use evidence such as videos or sound recordings, you should contact the court as soon as possible before the hearing to make sure that the equipment you need is available on the day.

Closed Circuit Television (CCTV) is a television system which is used for the surveillance of a premises or place.

CCTV cameras are usually located near:

• identified crime hot spots
  
• ATMs and banks
  
• pubs and clubs
  
• bus stops, taxi ranks, car parks and railway stations
  
• community facilities, including public toilets and telephones
  
• places where at-risk groups, such as the elderly and young people, regularly go.
  

You may want to consider getting a copy of any CCTV footage if it might show:

• the incident did not occur the way the witnesses or police describe it
  
• you were in a different location at the time the offence is alleged to have been committed.
  

Owners or operators of CCTV footage may give you access if you ask. CCTV footage may not be kept for very long so you should ask for a copy as soon as possible. 

Body-worn video is equipment worn by a police officer that is capable of recording images or sound or both.

If the police attended an incident, the police officer may have recorded what happened on their body-worn video.

If a police officer wants to record the incident, they must tell you they are using a body-worn video. If a police officer wants to record a private conversation, the police officer must be in uniform and provide evidence that he or she is a police officer.

If you were told that the incident was recorded, you may want to view this footage before you go to court. You should contact the officer in charge or the prosecutor dealing with your case and make an appointment to view the video. 

If you haven't had a chance to view the video before or on the day of court, you may be able to ask for an adjournment to get some more time.

You might have documents such as letters, maps or receipts that support your case, for example:

• a letter from RMS that led you to believe you were entitled to drive when in fact you were suspended or disqualified
  
• google maps showing the distance between two locations
  
• a prescription from a doctor which shows you were in lawful possession of medication
  
• a receipt which shows you owned an item.
  

You might have objects such as clothing, jewellery, or household items, for example:

• torn clothing that may show you were attacked and you were acting in self-defence
  
• broken household items, such as plates or a mobile phone, that may show you were being threatened.
  

If you are trying to get evidence from a person or an organisation and they will not give it to you, you can issue a Subpoena for Production.

For more information, see Step by step guide - Subpoenas.