Giving evidence in Court can be a difficult and overwhelming experience. Our Litigation team offers expert tips on how to prepare and what to expect.

‍What is Giving Evidence?

In legal proceedings, each party has a different 'case' or position that they are trying to convince the Court is the 'best' case. In order to satisfy the Court that their case is the better option, they need to either prove or support their case with evidence. Evidence can be documentary, such as contracts or affidavit material, or oral whereby evidence is given in Court.

If you are involved in legal proceedings of any kind, whether as a party or as a person who knows information that supports a party's case, you may be required to give evidence in Court. People who are required to give evidence in Court are called 'witnesses'.

Evidence can be given in all different Courts and Tribunals, including the Magistrates' Court, County Court, Supreme Court, Federal Courts, VCAT, Family Court and Children's Court.

If you are not a party to a proceeding, and a party or the Court requires you to give evidence, you are likely to be served with a subpoena. A subpoena is a court document that summons you to Court and details what evidence is being sought from you. For example, in a criminal proceeding, you may be called by the Director of Public Prosecutions to give evidence to support a witness statement that you made to the Police when you witnessed another person committing a crime.

How to Give Evidence

You will need to be in attendance at Court at the relevant date and time. When the Court is ready to hear from you, you will be 'called' into the witness box, which sits to the side of the Court room.

You will be asked to step into the witness box and remain standing. The Judge's Associate will ask you whether you want to take an oath or affirmation that the evidence you give will be the truth. An oath is when you swear on the Bible or other religious text that you will tell the truth. An affirmation is where you solemnly and sincerely declare that you will tell the truth. Once the Associate has taken you through either your oath or affirmation, you will then be asked to state your full name, address and occupation. You will then be directed to be seated.

The Lawyer for the party who called you as a witness will take you through your 'story' by asking you questions. This first set of questions is called the 'examination'. During the examination, the Lawyer must only ask you open questions so that they do not tell you what to say. You must speak slowly, clearly and always tell the truth.

Once the examination is over, the Lawyer for the other party will ask you a second set of questions, known as the 'cross- examination'. The Lawyer for the other party will generally only ask you questions that require short, yes or no answers.

Cross-examination can be a very traumatic experience, even for the most truthful of witnesses. This is because the Lawyer for the other party will be trying to point out any inconsistencies in your evidence, trick you into saying things you did not intend to say, and may try to ruin your credibility. You must listen to the questions carefully and only answer the specific question that you have been asked. It is not advisable to offer more information than that which is required. You must also remain calm and composed and remember that, while it may seem like a personal attack, the Lawyer is only doing their job, which is to ensure that the Judge does not believe your evidence.

After cross-examination, the first lawyer may ask you a few final questions to address any issues raised in cross examination, which is known as the 're-examination'. The Judge may also direct questions to you from time to time.

For general court etiquette, such as dress and how to behave in Court, please prefer to our Court Hearings article.

Can you refuse to give evidence?

If you are a party to proceedings, you can choose whether to give evidence or not. Obviously, whether this is advisable will depend on whether you have sufficient evidence to support your case, without giving evidence yourself.

If you have been subpoenaed to attend Court and give evidence, you can object to giving evidence on a few grounds, such as:

the subpoena fails on technical requirements e.g. the subpoena was not served properly on you or the process server failed to give you any conduct money (which is payment for your reasonable expenses of complying with the subpoena)
your evidence has no relevance to the proceeding, or
your evidence is protected e.g. the evidence of a doctor or lawyer can be protected from disclosure by professional privilege. Another example is self-incrimination, as you maybe protected from giving evidence that tends to incriminate you.

However, even if you object to the subpoena, you generally still attend Court on the date and time specified, and the Judge will determine whether you can be excused from giving evidence.

Whether by choice or by virtue of a summons, when giving evidence you may object to answering certain questions, if answering tends to incriminate you. The Judge will rule on your objection and either:

dismiss your objection and require you to answer the question
uphold your objection and allow you to refuse to answer the questions, or
uphold your objection but require you to answer the questions upon the Court granting you a certificate. The certificate prevents your answers being used against you in a subsequent Court case (other than for perjury).

If you do not attend Court when you are supposed to do so without lawful excuse, you can be arrested for 'contempt of court' and bailed to attend the next court date. Contempt of Court means that you have disobeyed the Court's orders. If you continue to fail to attend court, you can be imprisoned.

What now?

If you have to give evidence in Court, at Sharrock Pitman Legal we can help you understand the requirements of your attendance and evidence, and can advise you on the process and your options.

If you require assistance, please contact us on 1300 205 506 or by email at sp@sharrockpitman.com.au.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

For further information contact

Kevin K F Li

Kevin Li is an Associate Lawyer in our Commercial Litigation team. He has an advisory and advocacy practice in the areas of Commercial Litigation, debt recovery, insolvency, liquidation, and shareholder, commercial and contractual disputes. Kevin can be contacted on (03) 8561 3315.

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Giving evidence in Court can be a difficult and overwhelming experience. Our Litigation team offers expert tips on how to prepare and what to expect.

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

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I object! Giving evidence in Court

Giving evidence in Court can be a difficult and overwhelming experience. Our Litigation team offers expert tips on how to prepare and what to expect.

‍What is Giving Evidence?

How to Give Evidence

Can you refuse to give evidence?