Relevant Evidence

In the same way that parties can only give evidence that relates to the matter in court, an affidavit should only include relevant evidence. Failing to do this can see a court strike out parts of an affidavit. They may also decide to not present the entire document during legal proceedings. Additionally, the court will not allow outrageous or scandalous assertions within in an affidavit as evidence.

The person who is making the affidavit which includes this relevant evidence is known as the deponent. A deponent could be a:

  • witness;
  • expert;
  • plaintiff; or
  • defendant.

First-Hand Knowledge 

As a general rule of evidence, a witness can only give evidence for matters that are within their first-hand knowledge. This usually means that a person can only give evidence of what he/she has:

  • seen;
  • heard;
  • smelled;
  • felt; or
  • tasted.

In a wider sense, a person can naturally provide evidence on the actions that he/she has taken. They can also provide evidence on what they were thinking and intending at that time. 

Sometimes, a person may give evidence on what another person has told him or her about the incident. This is known as ‘hearsay’ evidence. Hearsay evidence is subject to detailed rules which will determine whether or not it the court will allow its use in legal proceedings. 

Affirming an Affidavit 

A crucial part of the process of giving evidence in affidavit form is to ensure that it is properly witnessed. In other words, it is vital that an authorised witness can affirm that the contents of an affidavit are ‘true and correct in every particular’. Authorised witnesses are typically:

  • court registrars;
  • lawyers;
  • justices of the peace;
  • police officers above the rank of sergeant; and
  • public notaries.

After an authorised witness affirms the affidavit, the court can order for it to be filed and served.

Annexures and Exhibits 

Documents that an affidavit may refer to are called either annexures or exhibits, depending on the specific court. You must attach them to the affidavit. The person witnessing the affidavit must attest to the fact that the documents are the same as what you referenced within the affidavit. 

The deponent and the witness should sign at the bottom of each page of the affidavit. This will ensure that the contents of an affidavit cannot later be debated during legal proceedings. Likewise, the deponent must initial any handwritten changes to a typed affidavit. Then, the witness should sign the end of the affidavit to confirm its accuracy.

Does This Mean I Don’t Need to Go to Court?

Even though a person has filed an affidavit containing their evidence in a case, they likely still must give this evidence at the trial. The reason for this is two-fold. Firstly, it is important for the person to verify in court that they did indeed swear or affirm an affidavit in the case. They also must confirm that the information is still true and correct at the date of trial. Secondly, the other party may wish to cross-examine the witness (i.e. ask their own questions) about the evidence contained within the affidavit. Doing this further tests whether the court should accept the evidence. 

Key Takeaways

If you are involved in legal proceedings that will likely proceed to a trial, you may need to provide an affidavit. The evidence that you provide must be a first-hand account of your experiences. Further, an authorised witness must properly affirm it. If you require assistance preparing an affidavit or at hearing or trial, contact LegalVision’s litigation lawyers on 1300 544 755 or fill out the form on this page.

If you would like further information on any of the topics mentioned in this article, please get in touch using the form on this page.
If you would like to receive a free fixed-fee quote for a legal matter, please get in touch using the form on this page.

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