Giving evidence in court

Giving evidence in court

Summary:

Giving evidence in court can be a daunting and stressful experience for any medical practitioner.

Courts & reportsFactsheets
26 / 04 / 2016

Giving evidence in court can be a daunting and stressful experience for any medical practitioner. This is an overview of your key obligations and responsibilities so that you will know what to expect.

A medical practitioner may be required to give evidence in court in one of a number of ways:

  • as a party whose conduct is being examined in the proceedings
  • as a factual witness to the healthcare or treatment of a patient
  • as an expert. 

It is important to clarify the forum in which you will give evidence so that you can understand the rules that apply. In Australia, civil and criminal trials are adversarial processes, in which each party in the proceedings will call evidence in support of their case, and the judge (or jury depending on the forum) will make a decision. By comparison, a coronial inquest is an inquisitorial process. Depending on the forum in which you are required to give evidence, you may be entitled to legal representation. You may give evidence in the form of a written statement or report, and/or by giving oral evidence. You should always ensure you are familiar with the patient’s records and the facts of the case before you attend court to give evidence.

Attendance 

  • You should arrive at the court at least 15 minutes before the time you have been asked to attend. 
  • You should not enter the courtroom until you are called to give evidence, as you are not generally allowed to hear the evidence of other witnesses before giving your evidence. 
  • Make sure you turn off your phone or pager before entering the courtroom.
  • If you have not been to court before, it may be useful to have a look at the courtroom in advance to familiarise yourself with the surroundings.

Oath or affirmation 

You will be called into the courtroom to give evidence and directed to the witness box. 

You should not take anything with you into the witness box. 

You will then be required to swear to tell the truth and usually you will be given the option of taking an oath or affirmation.

An oath involves swearing to God that the evidence you will give will be true and correct evidence and you will be required to hold a Bible or other religious text in your right hand. Alternatively, an affirmation does not involve swearing to God but rather, you affirming that the evidence you are about to give is true. Whether you make an oath or take an affirmation is a matter of preference for you.

Persons in attendance 

The judge will be sitting at the bench, facing the rest of the courtroom. If you need to address the judge, he or she is referred to as “Your Honour”. 

If you are a factual or expert witness, the barrister or solicitor for the party who called you to give evidence as their witness will ask you questions first. This is called evidence in chief. The legal representative for the other parties may then ask you questions. This is called cross examination and is used to seek clarification of the evidence you have already given, or challenge your evidence and put forward their client’s case. It can also be used to undermine the credibility of the witness or attempt to demonstrate that they are not an appropriate expert. 

The party calling the witness then has the opportunity to reexamine the witness with a view to clearing up ambiguities and uncertainties. At any stage in the proceedings, the witness can be questioned by the judge.

Giving evidence 

At the beginning of your evidence, you will usually be asked to state your full name and qualifications. 

If you have provided a statement or report, you may be provided with a copy of the document and asked to confirm that it is your statement/report and that the contents are true and correct. 

You may be asked specific questions about your statement/ report and taken to certain paragraphs. 

If you are asked questions about your medical records, then you should be provided with a copy of the records so that you can refer to them. If you have not been provided with a copy, then you should ask for them. 

You may also be asked additional questions outside the scope of your statement.

Attending court and giving evidence 

In certain circumstances the court may allow a witness to give evidence either by telephone or video link. Video or telephone evidence, as this is called, is usually by agreement between the parties and where practitioner’s evidence is largely not contentious. 

You should make sure you have a quiet and private room where you can give evidence without interruptions. You should ensure that you have the correct contact number for the courtroom if you are to dial in, or that the court has your correct contact number if the court is to call you. 

If you would like to take an oath, then ensure that you have a Bible or other religious text with you so that you can take the oath.

Tips for giving evidence 

Listen 

Listen carefully to the question and if you do not understand it, ask for the question to be repeated. 

Only answer the question asked  

If the question is capable of a “yes” or “no” answer, just answer “yes” or “no”. 

If the question requires more, then answer the question as fully as you can. Do not try to anticipate what information the barrister is trying to elicit, nor should you volunteer additional information outside the scope of the question, unless it is relevant. It is up to the person asking the question to clarify or request additional information. 

Your answers to the questions should be confined to issues of fact, not opinion, unless you are specifically asked to provide your opinion or if you are called to the hearing as an expert. 

It is important not to offer an opinion outside the scope of your area of expertise and/or level of experience. If you are asked a question you can’t answer then you should say so. For example, you may wish to say, “That question is outside the scope of my area of practice as a … and would be best directed to a …”. 

The legal representative for the other party may object to a question that has been asked. As soon as an objection is made you should stop answering the question until the judge makes a ruling. You will then be directed by the judge whether you need to answer the original question, or perhaps a different question.

Not knowing the answer 

If, when asked a question, you do not recall something, then it is acceptable to respond, “I do not recall”. Do not try to reconstruct what you believe may have happened or what you have been told by someone else about what they believed has happened. Your evidence should only be based upon what you actually observed. 

If you need to look at the medical record or another document to refresh your memory, it is entirely appropriate for you to do so. If you do not have a copy, then you can ask for it to be provided to you. It may be appropriate for you to respond to a question by saying, “I cannot recall now, but I made a notation in the medical record at the time. That notation says …” 

If you are uncertain about something, you should say this in your answer. 

If you feel you need to provide a more detailed answer than the barrister allows before asking the next question, then say that you wish to answer the question further and if there is no objection to you doing so, continue to provide your answer.

Relax 

A witness who is relaxed and comfortable is usually a more credible witness. However, that does not mean it is acceptable to be casual in demeanour. Do not argue with counsel or the judge.

Further information 

It is not advisable to take this information sheet into the courtroom with you.

For more advice, call Avant’s Medico-legal Advisory Service on 1800 128 268. Visit the Avant Learning Centre for Avant Risk IQ resources including webinars, eLearning courses, case studies and checklists.

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