In Australia, evidence in a court proceeding may be given by Affidavits or, if the evidence relates to a public document, by a written statement. Therefore, an affidavit is a written form of evidence used in court proceedings that is sworn or affirmed to be true.
An affidavit sets out the facts as you remember them, and should include what the facts you assert are based on, such as how you came by the knowledge, information or belief set out in the affidavit.
An example would be: “I was a driver of a car at the intersection, and witnessed the car drive through the red light and crash.”
An affidavit is ordinarily used in support of other documents, such as a statement of claim, notice of motion, defence or application for final orders. It is different from a witness statement, as the affidavit must be signed and witnessed. Further, sometimes when you make an affidavit you may not need to give evidence in person.
However, this is not always the case, and you may still have to go to court to answer questions.
Is there a Particular Way I Should Write my Affidavit?
When you write an affidavit, you should set it out in paragraphs that are numbered. You may also use headings. When writing an affidavit you should consider what should be in the affidavit, if there are any documents that will need to be attached, and in what court the affidavit will be filed. Each court may have its own rules in relation to how an affidavit should be set out, served and filed. The person making an affidavit is called the ‘deponent’ and an affidavit can be made by:
- A plaintiff or applicant
- A defendant or respondent
- A witness
- An expert
It is suggested that before writing your affidavit, you obtain the form which is used by the relevant Court. In most cases, these are readily available online and can also be filed online.
The standard content of an affidavit varies depending on the type of proceeding. For example, if you are intending to lodge an affidavit in relation to a family law dispute, a family lawyer will have the required expertise to make sure your affidavit is correct in form and attests to your case effectively. Similarly, if your case concerns defamation, a defamation lawyer will ensure your affidavit is drafted the right way.
How are Affidavits Signed?
An affidavit needs to be witnessed by a qualified witness. The qualified witness is either a Justice of the Peace, Commissioner for Declarations or a lawyer. In front of the qualified witness, you must either have the affidavit sworn or affirmed as being the truth, and then you will sign your affidavit. You must sign your signature where it says ‘the deponent’ and the qualified witness will also sign the end of the affidavit, the bottom of each page and any annexures or exhibits.
If you need to correct any errors, cross out the error and put your initials next to the change. The witness must also put their initials next to the change.
What’s the Difference between Swearing or Affirming it?
You may choose whether to ‘swear’ or ‘affirm’ the truth of the affidavit.
Swearing is where a person who believes in a god can swear by their god that the affidavit is true. Usually, you will hold a Bible or other relevant holy book to hold while you swear the oath. If you do not have an religious beliefs you may affirm that the affidavit is true. An affirmation is a solemn declaration of truth, without any reference to a god. As long as you have either ‘sworn’ or ‘affirmed’ the truth of the affidavit in the presence of an qualified witness, it does not matter which one you have chosen.
Do I Need Legal Advice?
If you intend to depose an affidavit, it is recommended that you seek legal advice if you are not sure what can be included in your affidavit for it to be admissible in court. Affidavits which aren’t drafted properly or do not attach sufficient evidence may not be considered by a Court, and can even be detrimental to your case.
Written by Susanne Rakoczy
