Attending an examination

What to expect when you attend before the Chief Examiner to give evidence or produce documents or things.

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This page contains general information about what happens when you attend before the Chief Examiner. It deals with your rights and obligations.

A witness summons or custody order to attend and give evidence requires you to take part in an ‘examination’. You are known as the ‘witness’ throughout the examination process.

Examinations are held by the Chief Examiner or an Examiner to whom the Chief Examiner has delegated their powers.

When you attend as a witness, the Chief Examiner will require you to take an oath or make an affirmation before giving evidence.

The Chief Examiner will take your evidence by asking you questions that are relevant to the organised crime offence under investigation. You are required to truthfully answer all questions asked of you.

If necessary, the Chief Examiner can require a witness to attend again on one or more days to finish giving evidence.

Examinations are video recorded and kept by the Office of Chief Examiner. The Chief Examiner will give directions about who may access that recording.

Self-incrimination

You must answer all questions that are asked of you, even if you think the answer might incriminate you or subject you to a penalty.

If you do incriminate yourself, you have an important protection. The answer you give at an examination cannot be used in evidence against you in a criminal proceeding or a proceeding for the imposition of a penalty.

That protection does not apply in legal proceedings:

You are not required to give evidence about matters that are covered by legal professional privilege at an examination.

If you are required to produce a document or thing to the Chief Examiner, you must bring it with you when you attend – even if you think it is covered by legal professional privilege.

If you claim the privilege over a document, the Chief Examiner can require you to place the document or thing in a sealed envelope. The Chief Examiner must then give the document or thing to the Court and ask it to decide whether the privilege applies. If the privilege applies, the document or thing will not be released to the Chief Examiner and will be returned to you.

Legal professional privilege may be claimed over a confidential document or confidential communication made for the dominant purpose of:

  • obtaining or giving legal advice
  • the provision of legal services
  • use in pending or anticipated legal proceedings

Non-compliance

If you have received a witness summons, you must attend at the time, date and place specified on the summons. If you fail to do so you may commit an offence, punishable by up to 5 years imprisonment.

When you are at the examination, you must:

  • take an oath or make an affirmation when required
  • produce documents or other things that you are required to produce
  • answer all questions asked of you, except if your answer would breach legal professional privilege
  • give truthful evidence
  • comply with all non-publication directions made in your examination

If you fail to comply with any of these obligations, you may commit a criminal offence. The offences carry a penalty of up to 5 years imprisonment.

You must not hinder or obstruct the Chief Examiner in conducting an examination, or disrupt an examination.

Contempt

The Chief Examiner has the power to charge a witness with contempt. If the Chief Examiner believes you have committed contempt at an examination, you will be immediately charged, arrested and taken before the Supreme Court.

The Court may order that you remain in custody until the proceedings are finalised. If you plead guilty to contempt, or are tried and found guilty, you may be sentenced to a term of imprisonment.

The penalty for contempt is ‘at large’, meaning that the Court is free to impose whatever sentence it thinks appropriate.

You are entitled to get advice from and be represented by a legal practitioner at your examination. Sometimes the Chief Examiner may not authorise the legal practitioner of your choice to be present at your examination – for example, if they have a conflict of interest.

If you receive a witness summons and want to get legal advice or have a lawyer represent you at your examination, you should arrange this urgently.

If you require assistance from Victoria Legal Aid, you should ask to speak with someone in the Indictable Crime Team.

Who will know that I am attending?

Those who assist the Chief Examiner will be aware that you have received a witness summons. It is an offence for any person to unlawfully disclose that information, punishable by up to 5 years imprisonment.

If you have received a Notice of Confidentiality with your witness summons, you will be required to keep the summons and any information about it confidential. You may tell a legal practitioner about the summons for the purposes of getting advice or representation at your examination.

When you attend before the Chief Examiner, they may give other directions to limit who can know about your attendance, the evidence you give or any documents or things you produce. For further information, visit our page on confidentiality.

Reimbursement for expenses

If you attend before the Chief Examiner, you can apply to be paid certain allowances and expenses to help you meet the cost of things such as meals and travel.

Staff of the Office of Chief Examiner can give you a claim form , should you wish to make a claim.

There are limits on what you can claim. You should contact the Office of Chief Examiner if you have any questions.

Crime

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