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If you are involved in court proceedings, or maybe have just watched too many crime TV shows, you have probably heard the term ‘affidavit’. But what, actually, is an affidavit? Understanding this will be very important if you are ever participating in legal proceedings. This article will explain what an affidavit is and the particulars that you need to know if you ever have to provide one.

Definition of an Affidavit

An affidavit is an account of someone’s evidence or statement of facts in written form. The term ‘affidavit’ comes from medieval Latin and means “he has stated on oath”. The benefit of presenting evidence in this way is that each party in a court case is aware of what the other’s witnesses will say at the trial. It is beneficial both in preparing for the trial and so that each party can be adequately advised on their prospects of success.

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 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. Therefore, 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. However, 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. This requires you to sign the affidavit in front of the authorised witness. Note that when you sign, you are declaring the contents of the affidavit to be a true account of your understanding of the facts and issues. 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. Service concerns the procedure by which a party informs the other side of the claim being made against them.

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Annexures and Exhibits 

Documents that an affidavit may refer to are called either annexures or exhibits, depending on the specific court. These documents provide additional details or information. You must attach them to the affidavit. You should also clearly identify them, for example, by writing This is the annexure marked ‘A’‘. 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 parties cannot later debate the contents of an affidavit 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.

TIP: You should bring two copies of the affidavit to sign and witness, in case one gets lost or something otherwise happens to it. 

Does This Mean I Do Not 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.

Frequently Asked Questions

What is an affidavit?

An affidavit is a legal document that is a written statement of someone’s evidence.

What evidence is included in an affidavit?

The evidence that you include in an affidavit must be relevant to the proceedings. It must also come from the witnesses first-hand knowledge.

How can an affidavit be affirmed?

An authorised witness must properly witness an affidavit. This includes by a legal practitioner, JP, court registrar, public officers and public notaries.

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