Witness statements 110-11030050

In most cases, witnesses will be Services Australia employees and other third parties involved or known to a customer who are able to provide evidence that links them to the alleged offence.

The most common witness types are:

• The investigator - see Item 9
• Employees of Services Australia, other than the investigation team, may be required to provide a witness statement about an event or interaction with the customer, particularly if direct evidence is required or if the systems information is not within the investigator's knowledge. See Gathering information from internal sources
• The customer's partner - see Item 4
• Experts with a high level of knowledge, skill or specialisation in the subject of the evidence being presented. See Obtaining expert evidence
• Third parties, for example, financial and educational institutions, employers, real estate agents, neighbours, relatives, surveillance operatives. As most evidence in investigations relates to business records obtained from third parties, the most appropriate person to provide a witness statement is generally the employee who responded to the original notice. See Item 6

Online searches must not be used to identify potential witnesses. This constitutes unauthorised access.

Record details of all contact with witnesses.

A separate procedure applies for recording expert witness details.

Within the investigation case management system create an appropriate task or activity and code relevant details, including method and date of contact with potential witness.

If planning to contact neighbours, schools, childcare centres, sports organisations, or children, a critical decision record must first be completed and approved.

Update status of activity to indicate if a statement has been requested, received, or if unable to contact.

If a witness statement is to be made/obtained, select the relevant template from within the Investigation Toolkit, according to the jurisdiction where the court proceedings will occur.

Although not considered a witness statement, any relevant statements made by the customer need to be provided in the Brief of Evidence.

Statements proved to have been written by the customer, or on their behalf and signed by them, may be tendered as evidence against them.

For example:

• statements made in connection with the investigation, instead of attending a Record of Interview, or a statement made at the conclusion of the Record of Interview
• statements made in conjunction with a claim or a review
• in limited circumstances, subject to use immunity and rules around self-incrimination, coercive notices completed by the customer

Statements made by the customer can be very useful if they include:

• admissions
• details of a defence
• details of the customer's explanation of the events under investigation
• evidence of the customer's understanding of his/her obligations in respect of the receipt of the payment
• evidence of the customer's understanding of why the payment is paid
• information which may lead to a chain of inquiry which discovers further evidence
• evidence of a guilty denial that is a provable lie

Although not considered a witness statement, any relevant statements made by the partner need to be provided in the Brief of Evidence.

A customer's partner will often be able to provide relevant information. However, they may not be willing to assist.

A customer's partner might be an accomplice in the commission of an alleged offence. A partner may be suspected of knowingly supplying false information to support their partner's claim.

In some jurisdictions, a person cannot be compelled to give evidence against the person who was their partner at the relevant time. However, if they are willing to assist, the evidence can be valuable.

More information on the law in a jurisdiction, and whether a partner can and should provide witness evidence, can be obtained as part of pre-brief liaison advice from the Commonwealth Director of Public Prosecutions CDPP.

A critical decision record must be completed and approved before contacting persons under 18 years of age.

If taking a statement from a child is approved, any discussion/interview must be conducted with permission and in the presence of the child's parent/guardian who should be asked to co-sign any statement drafted by or for the child.

A critical decision record must be approved before contacting neighbours, schools, childcare centres, sports organisations, or children.

Details of contact with potential witnesses and their response must be coded on the investigation record - see Item 2.

Respect the rights and interests of witnesses. Use discretion when making contact, for example, when leaving messages at home or at work.

When seeking a witness statement:

• Make it clear that the provision of any information is voluntary. Under no circumstances imply that a person is compelled to respond to requests for witness evidence (there are exceptions with Services Australia employees)
• As a matter of courtesy, notify the witness's manager (if applicable) at the first practical opportunity
• Before drafting a witness statement, ensure the witness is aware they may be required to attend court to give this evidence
• When drafting the witness statement, it should clearly tell their account of the events in their own words
• The statements must be drafted considering all matters of relevance, exculpatory evidence and hearsay
• Avoid suggesting answers or disclosing the evidence of other witnesses or other evidence, as the statement is an opportunity to assess the credibility of the witness
• During the interview, the witness raises the issue of an indemnity in return for giving evidence. Stop the interview immediately. Advise the person that the decision to grant an indemnity rests solely with the CDPP

A statement must not be taken if, because of something said during enquiries with the witness, there is reason to suspect that the witness may have contributed to the offence in some way, such as conspiring with the customer.

If a statement has already been made, the CDPP must be advised as part of disclosure obligations. The credibility of the witnesses is paramount to the court proceedings.

An induced statement may be made by an accomplice in the belief that the information included in that statement will not be admissible in any criminal proceedings against the person making the statement.

The investigator must stop the interview immediately if, during the course of an interview with a witness, the witness raises the issue of an indemnity in return for giving evidence. Advise the person that the decision to grant an indemnity rests solely with the CDPP.

Investigators must not take an induced statement from any person without first consulting with the Operational Policy Team and the CDPP.

An indemnity from prosecution is an agreement that the person to whom the indemnity is granted is immune from prosecution, in relation to the matter under consideration. The indemnity can only be issued by the CDPP and only after the following conditions are met.

The evidence that the accomplice can give is considered necessary to secure the conviction of the customer and that evidence is not available from other sources.

The accomplice can reasonably be regarded as significantly less culpable than the customer.

Commonly referred to as a system or shell statement, this must be provided with every brief referred to the CDPP.

It includes systems information and/or processes relevant to the exhibits and business records of Services Australia.

The System Statement Template should be used by all investigators.

This document includes the agreed phrasing and description of Services Australia's computer systems, business processes and business records that are common to all systems evidence, such as the explanation of records and On-line Document Recording (ODR). It also includes qualification for payments that is specific to certain circumstances of an investigation, such as qualification for payment, self service options and an explanation of commonly exhibited screen prints.

When completing the template:

• BLUE TEXT IN CAPITALS = input free text
• <Red text in brackets> = copy and paste relevant information from Part B, or remove
• Black text = information that must be retained and unedited where possible

It is preferred that the template information is not substantially changed based on individual preference. If substantial changes are required, contact the Policy Team. If the system information is not within the knowledge of the investigator, another Services Australia witness may be required. This should be discussed with the Senior Investigator/Assistant Director of Investigations.

When drafting a witness statement, the aim is to convey the message in language that is easily understood, relevant and factual.

Spend time defining precisely what needs to be said and assembling relevant facts.

Think clearly before drafting a single word. Plan the writing, collect necessary information, speak to relevant people, organise material, draft the statement, edit it and then examine if from the reader's point of view.

A statement is ultimately about providing a factual and relevant written analysis that informs all parties and brings everyone to a clear understanding, particularly the court.

In practical terms, statements:

• must be relevant to the issues in the case
• must be written in the language/words of the witness
• must not express personal views other than in areas of expertise
• provide the basis or foundation for the admission of exhibits
• can provide a firsthand recall of events and contain observations about what was seen, heard or happened
• can include representations about a person's knowledge
• can include representations about agency systems

Before taking or drafting a statement, plan how it will be structured.

Format: Witness statements should be typed and each paragraph numbered.

Statements include the following elements:

• Date: The statement must be dated. The date under the signature on the last page is the date the statement is signed by the witness
• Heading: 'Statement in the matter of Services Australia (Centrelink) Vs [NAME]'
• Personal details of witness: At least their full name. If it is not appropriate to record their address, 'known to Services Australia ' can used. A business address can be used if evidence is given as part of their official duties. Start the statement with their name and their role or relationship to the customer
• Jurat or declaration: Where court proceeding is likely to occur
• Preamble: Start with the facts obtained from a witness. Establish the context for the main body of evidence, including where they were, what they were doing, times and dates. It could also explain relevant duties or procedures undertaken in areas of employment
• Body: Include all observations and conversations relevant to the offence. Address the main points, for example, what was seen or heard. Include proofs of the offence, bearing in mind the rules of evidence (see the Resources page). Cover all events in a logical order, usually chronological. Include the following parts
• introduction of the witness
• start of the statement
• body of events
• impact and conclusion
• Conversations: Use first person, 'I said'; 'he/she said'. If the exact conversation cannot be recalled, preface with 'Words to the effect of'
• Exhibits: Fully describe exhibits and the handling of any seized evidence. Refer to any identifying code and any receipt provided to the witness for handover of property
• Conclusion: This can include anything not previously covered and can include costs and damages
• Signature of the person making the statement, in accordance with the jurisdiction where any court proceeding is likely to occur
• Witness to the signature

Before executing (swearing) the statement, it is highly advisable to provide the final draft to the CDPP. They may wish to comment, change or vet the statement.

If providing a final draft is not practical or necessary, the statement can be signed and a supplementary statement drafted if necessary.

If there has been a minor drafting error on the part of a witness, it is better to disclose this information than to risk having it come out in cross-examination in court.

Subject to discussion with the CDPP, if the matter changes or something is omitted from the original statement, there is no reason why a supplementary, or addendum, statement cannot be prepared.

The witness should refer to the earlier statement dated X on the subsequent statement and continue from there.