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In this article, Adeline Tuffy, Senior Litigation Solicitor, looks at what State authorities can expect if called on to be a witness in court.

How will I know I am to be a witness?

If you are required to attend Court as a witness, the State Claims Agency will inform you as soon as possible before the hearing date.

You may receive a phone call or a letter with a subpoena or witness summons.

A subpoena is a court order which requires you to attend at court on a particular day or days.

If you will be unable to attend court for a serious reason, (e.g. you are in hospital or you will be out of the country on the hearing date), you will need to let the State Claims Agency know as soon as possible.

What do I need to do in advance?

To prepare for giving evidence, review any incident reports and your witness statement. The State Claims Agency can give you a copy of these documents if you have not kept them. If you have any personal notes made at the time of the incident, you should review them also and make sure you have given a copy to the State Claims Agency.

It is important that you refresh your memory from your notes made at or close to the time of the incident as the court hearing can be many years after the incident occurred.

If you are called as a witness by the State Claims Agency, you will be invited to a meeting with our legal team before the court date (pre-hearing consultation). At this meeting, we will go through what will happen at the court hearing and give you the chance to ask any questions.

As a witness you will be asked to tell the court your memory of what happened or what you did at a specific time.

Adeline Tuffy Senior Litigation Solicitor

What will be required of me at the hearing?

Court hearings are formal occasions, and you should dress smartly. The judge, the plaintiff, (the person making the claim) and the legal teams for both parties will be present in court. There may also be a stenographer who records what everyone says.

As a witness you will be asked to tell the court your memory of what happened or what you did at a specific time.

Your role will include:

  • Promising to tell the truth, the whole truth and nothing but the truth, either by swearing on a religious text or by a secular affirmation
  • Answering questions from a lawyer for the State authority (direct examination)
  • Answering questions from a lawyer for the plaintiff (cross examination)
  • With the permission of the judge, you can use your own notes made at the time of the incident to help refresh your memory when giving evidence
  • In all cases you are giving your evidence to the judge and should direct your answers to them
  • Listening carefully to the question and asking to hear it again or have it explained if you do not understand it
  • If you do not know the answer to any question, say you don’t know, don’t guess
  • As a witness about matters of fact known to you, you do not need to give your opinion, that is a matter for an expert witness.

How long will I need to be at the hearing?

At the pre-trial consultation the State Claims Agency will advise you how long the case is likely to take and when you will need to be available. Where possible, we will try to reduce the time you spend waiting for the court to hear your evidence.

Will I have to appear in person?

Most court cases are heard in person. Since the Covid-19 pandemic, some hearings have been held remotely or in a hybrid manner, so you may be able to join remotely. If participating remotely, you should:

  • ensure you are joining on a secure internet connection and that your device is fully charged
  • sit alone in a well-lit and quiet room where there are no disruptions and interruptions
  • ensure your microphone and camera are off unless addressing the judge

You cannot refer to a script or notes or communicate by text with others when giving your evidence remotely.

Do I need to take leave?

If you are called as a witness by the State Claims Agency, and you are still working for that State authority, you are attending court as part of your employment and should not need to take leave. Any reasonable travelling and other expenses should be met by your State authority, subject to policy.

If you receive a subpoena, your employer must release you to attend court. Any loss of earnings and reasonable travel and other expenses will be paid by the party issuing the subpoena. You should ask your employer for a letter stating your NET loss of earnings to vouch your claim.

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