Being called as a witness in court can be a daunting proposition. Noon Sirisamphan, senior solicitor at DLA Piper, and Adam Holloway, partner at DLA Piper, provide a practical guide to what you can expect.
The medical world can be a mysterious and unsettling place; it has a bureaucracy and language all of its own. To a lesser extent, the same is true of the legal world. It is, therefore, understandable that some doctors will feel unsettled by receiving a formal notice requiring them to give evidence in a court: here, we take a practical look at giving evidence.
Leaving aside the Mental Health (Compulsory Assessment and Treatment) Act 1992 and the field of forensic psychiatry, the most common reasons for doctors to give evidence are probably coroner's inquests and criminal prosecutions.
Coroners’ jurisdiction
Coroners are judicial officers equivalent to district court judges. The primary function of a coroner is that of a fact-finder: they decide whether to direct a post-mortem, authorise the release of the body, and determine whether an inquiry is to be opened. A coroner must open an inquiry into self-inflicted deaths, deaths in official custody or care, and unexplained deaths. A discretion exists in other cases. As part of an inquiry, a coroner may also decide to hold an inquest, which is a formal hearing of evidence.
The coroner can require a witness to attend an inquest by issuing a summons.
Criminal jurisdiction
The criminal jurisdiction is adversarial rather than inquisitorial, so it is up to the prosecution and defence (not the judge) to decide what evidence to call. Either side can obtain a summons calling a person to appear as a witness at a hearing in relation to a charge.
Receiving a summons — what happens next?
A summons can't be ignored. It is a criminal offence to not appear when required (the penalty being a fine up to $1,000), and the coroner or judge may issue a warrant for you to be arrested and brought to court.
Liaising with the party calling you as a witness
An important question is: “Do I need to give evidence at all?” Sometimes witnesses are summoned when they don't need to be. Your evidence may be uncontroversial and could be given in writing, or the person calling you could be mistaken about the relevance or potential helpfulness of your evidence. It is therefore sensible to liaise as soon as possible with the person wanting to call you. Ask questions and try to find out why you are being called and what evidence you are expected to give.
If there are dates that will be difficult for you to attend court, make this known as soon as possible. In the coroner’s jurisdiction, tell the relevant coronial case manager. In criminal proceedings, write to the registrar as well as telling the lawyer who wants to call your evidence. While there are no guarantees, courts will generally try to accommodate witness availability where they can. If a court appearance can’t be changed and you had planned to be out of town, ask the coronial case manager/registrar about the possibility of giving evidence by video link.
Preparation and what to expect on the day
The process of giving evidence is made up of four parts:
- Evidence in chief (for example, reading out your statement/brief of evidence or report for the coroner)
- Cross-examination
- Questions from the coroner or judge
- Re-examination.
Evidence in chief
The person who is calling you as a witness asks you to come forward to the witness box. After you have taken an oath, the person calling will lead your ‘evidence in chief’ – this is your opportunity to tell your part of the story, which usually involves you reading out your brief of evidence. You may also be asked some supplementary questions.
Cross-examination
Cross-examination is when other parties are given the opportunity to scrutinise and test your evidence in chief by asking questions. It is often the process that witnesses are most apprehensive about, but it is rarely as dramatic as television portrayals.
The best way to relieve nervousness, and be good at cross-examination, is preparation:
Know the courtroom – the layout and etiquette - It is a good idea to come to part of the hearing before your turn to give evidence, so that you can get used to the layout and personalities in the room. Sometimes, the coroner/judge makes witness exclusion orders: if you are arriving at court after a hearing has started, it is important to check whether a witness exclusion order is in place and whether it applies to you.
Be controlled and measured in your responses - Listen to the question and consider it before responding, to avoid appearing uncertain or giving an unconsidered answer too quickly. Body language needs to be kept in check, as do impressions of arrogance, aggression or irritation.
Confidence is also important, as it reinforces your expertise and knowledge of the area. This comes with preparation and knowing the facts and relevant documents.
After cross-examination has started, you are not permitted to talk to anyone else about the proceeding (whether they are involved in it or not). This means you cannot talk to other people about the proceeding during adjournments – including adjournments that run overnight.
Questions from the coroner/judge
The coroner/judge can ask you questions on any topic or subject of interest. If you don't know the answer to a particular question, it best to say so.
Re-examination
After cross-examination, there is an opportunity for the person who called you to ask further questions on matters arising from cross-examination. If you are re-examined by your lawyer, it is usually for a reason – typically to correct or clarify something you said in cross-examination. When you hear the question, listen carefully and try to think of the reason behind it.
Other tips for cross-examination
- Always be honest.
- If you do not know an answer to a question, say so. Do not guess the answer if you are unsure. Similarly, if you are unsure or don’t understand a question, say so: the question will then be restated or rephrased. You will not be criticised for making sure that you understand the question before answering it.
- After listening to a question, direct your answer to the coroner/judge. Turn to face the fact-finder/decision-maker and make eye contact.
- Tell the truth in a simple, straightforward way. Short and concise answers are the best. Whenever possible, answer questions with a ‘yes’ or a ‘no’. Giving an imprecise or complicated explanation to a simple question can appear evasive and uncertain; resist letting the cross-examiner rush you.
- Listen and take your time over questions and give considered answers. There is no rush when giving evidence and a witness will never be criticised for taking time to give accurate and precise answers. In order to be accurate, make sure that you concentrate and fully understand each question put to you before providing an answer. If you need to refer to a document before answering, ask to do so.
- Treat each question on its own merit. Do not try and predict where the line of questioning is heading, as this will distract you.
- If you are asked to read a document, make sure that you do read it carefully, even if the document is very familiar to you.
- Once you have said everything you have to say in response to a particular question, be quiet and comfortable waiting as long as is necessary for the next question. Do not feel obliged to fill the silence.
- If answering a question requires you to be critical about another person, ensure that the tone of that evidence is objective. The best impression you can create is one of objectivity and candour.
- On the other hand, if a question invites a strong answer and you have a strong view, give it. You are entitled to and should be forthright in your evidence where necessary, but refrain from becoming over-emotive.
- You may not ask questions yourself, except to request that a question be repeated or clarified where you did not hear or understand it. Challenging counsel by responding with a question of your own is inappropriate.
- If you have any doubt about your answer, you can say “I am not sure I remember everything, but my best memory/what I do recall is...” Give the best answer you can in the circumstances.
- If your honest view is that what has been put to you is correct, you must agree. However, you may sometimes feel that a straight ‘yes’ or a straight ‘no’ is an insufficient answer. The best way to deal with this is to say ‘Yes, but…’ or ‘No, but…’ and then give your qualification.
There is much that could be said about the art of giving evidence as a witness in court. While there is no substitute for the real thing, some colleges (such as the Australasian College of Legal Medicine) run training programs for giving expert evidence in court, including a mock trial.
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Noon Sirisamphan has a number of years of experience in regulatory and professional disciplinary frameworks, and specialises in healthcare law. She has appeared in the coroners court and Health Practitioners Disciplinary Tribunal, and regularly assists Medical Protection members in responding to complaints, inquiries and other investigations.
Adam Holloway specialises in healthcare, public law and civil litigation. He regularly acts for Medical Protection members in relation to a wide range of medicolegal, professional misconduct and privacy matters, including inquests.
i www.legalmedicine.com.au/courses/expert-witness-training-program/