6 things to know about Affidavits

6 things to know about Affidavits

Below, we answer the top 6 frequently asked questions about Affidavits.

1. What is an Affidavit?

An Affidavit is a legal document that contains a true written and signed statement, which may be used as evidence in a court or tribunal.

An Affidavit is similar to a statutory declaration or a witness statement, in that all contain written and signed statements that are used as ways of giving evidence. However, they each have different uses, formats and signing requirements.

2. What is the purpose of swearing an Affidavit?

Affidavits are mainly used in Court proceedings. They are a written alternative to a person attending Court to give oral evidence in the witness box.

Affidavits can be used to evidence, or prove, a number of things. For example, they are often used for people to tell their ‘story’ to the Court. This type of Affidavit will set out in detail the person’s version of events, which is then filed with the Court.

They are also commonly used to prove that legal documents have come to the attention of other people, known as an ‘Affidavit of Service’.

If a person intentionally gives evidence in an Affidavit that they know to be false, then they may be prosecuted for the crime of perjury, as making an Affidavit has the same truth requirements as giving oral evidence in Court.  

The penalties for perjury can be severe and the Courts generally impose a sentence of imprisonment, unless exceptional circumstances exist.

3. How to write an Affidavit

The content and style will depend on the type of Affidavit required and what is needing to be achieved.

However, generally speaking, Affidavits should be:

Your story

The content must generally be from your own knowledge and recollection, and in your words. You generally cannot speak on behalf of someone else in your Affidavit, as this is known as hearsay evidence.  

For example, to prove that your brother said something rude about you, you cannot include in your Affidavit that your sister told you she overheard your brother saying those things.

As you did not hear those words yourself, you cannot give evidence that those words were said. There are a few exceptions to this rule, including Affidavits made for use in applications made prior to trial (interlocutory applications). Nonetheless, hearsay is best avoided where possible.

Legible

Handwritten Affidavits should be avoided, if possible.  

Well organised

Dates or events should normally be detailed chronologically, with clear headings where appropriate.

Concise

Avoid long paragraphs and try to be as clear as possible. A good tip is to have only one event per paragraph.

Proof read

It is important to make sure that you have not repeated yourself, there are no spelling mistakes, and that all sentences make sense.

Relevant  

The content must be limited to those matters that will assist the Court to determine the disputed facts in the proceeding. Accordingly, avoid information overload! Keep in mind, the Courts have limited time so they do not like having to read unnecessarily long Affidavits.

4. Can I write my own Affidavit?

Anyone can prepare their own Affidavit, although it must be sworn or affirmed in front of an authorised Affidavit taker (see below, “How to swear or affirm an Affidavit”).

The form of the Affidavit will depend on the type of legal proceedings. Each Court has their own prescribed form of Affidavits, and this information is readily available on all Court websites where Court forms are located.

For example, here is a link to preparing an Affidavit for the Supreme Court of Victoria.

Each Court or Tribunal also has specific rules regarding requirements that must be followed. Accordingly, please refer to the guidelines set out on the appropriate Court or Tribunal’s website when preparing your own Affidavit.

5. How to swear or affirm an Affidavit

Your Affidavit must be signed by you in the presence of an authorised Affidavit taker, and you must either:

• Swear or promise by the name of Almighty God or a god recognised by your religion (known as an oath).  This oath is traditionally made whilst holding a Bible or other holy book recognised by your religion (e.g. Torah, Koran). However, this is not required by law; or
• Affirm that the information is correct (known as an affirmation).

The authorised Affidavit taker must watch you sign the Affidavit at the time of signing. You cannot sign it and later bring it in to be witnessed.

The authorised Affidavit taker will ask you whether you want to swear or affirm your Affidavit and, depending on which option you chose, they will direct you about what to say in order to make the oath or affirmation.

After that, they must legibly write their name, address and qualification underneath their signature on the final page of the Affidavit, as well as signing at the bottom of every page of the Affidavit.

There are various people who are authorised to witness Affidavits, including:

• Justice of the peace or a bail justice;
• Legal practitioner;
• Police officer of or above the rank of sergeant or for the time being in charge of a police station; or
• Public notary.

6. What to do after swearing your Affidavit

Affidavits are key documents in any Court proceedings. They can form a substantial part of the evidence that you will be relying on to support your case. They also have a lot of procedural requirements, including strict deadlines for when they must be filed with the Court, and often need to be provided to the other party in specific ways.

Accordingly, you should get legal advice as soon as possible. At Sharrock Pitman Legal we can help you understand the requirements of your Affidavit and advise you on your options.

How can Sharrock Pitman Legal help me?

Our Disputes & Litigation team has extensive experience assisting customers prepare for Court and Tribunal proceedings, including drafting Affidavits. If you require advice or assistance, please contact our Litigation team on 1300 205 506 or alternatively fill in the form below.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

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