The Affidavit Guru

Affidavits, witness statements and statutory declarations in Australia

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In Australia, affidavits, witness statements and statutory declarations are all different ways that a person can provide a formal, written and signed statement of the evidence they wish to give in relation to a particular matter. Penalties may apply in each case if false information is included in one of these documents.

The differences between affidavits, witness statements and statutory declarations in Australia relates to their format and the way they are signed. These matters are explained under separate headings below.

The actual content of each should be written in the same way no matter whether the document is an affidavit, witness statement or statutory declaration.

Affidavits in Australia

Affidavits are used in Australia as as written substitute for a person turning up and giving oral evidence from a witness box in court. The obligation to tell the truth and the whole truth in making an affidavit is the same as when a person is giving evidence in the witness box (ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193).

A person who makes an affidavit may not need to turn up to court to give evidence at all because their affidavit will be “tendered” or “read” by the court instead. This will have the same effect as the person giving that evidence orally. However the person may still be required to attend court for questioning from other parties (known as “cross-examination”).

Just like oral evidence given in court, an affidavit must always be made on oath or affirmation. Oaths and affirmations are alternative ways of “making” an affidavit, and they are of equal effect. An “oath” is a religious promise to tell the truth. An affirmation is a non-religious equivalent.

An affidavit must be signed before a person who is authorised to administer an oath or take an affirmation. Once the oath or affirmation has been completed, both the person making the affidavit and the witness will sign the affidavit. They both usually sign down the bottom of each page except the last page. On the last page they sign in a special signature panel called a “jurat”.

Depending on the jurisdiction there may be additional requirements. For example, in New South Wales there is a requirement that the person making the affidavit provide the witness with appropriate identification in certain circumstances.

Witness statements in Australia

Witness statements are used to give written evidence in some courts in Australia, quite often in criminal matters. A witness statement is signed by the person making the statement. No oath or affirmation is required.

A witness statement may also be signed by some other person who witnesses the maker’s signature. Generally there is no requirement that this person witnessing the signature is qualified in some way, although it will usually be sensible to choose someone who is responsible and who is over 18.

Statutory declarations in Australia

Statutory declarations in Australia are used to give evidence for non-judicial matters. There is a different kind of statutory declaration for each jurisdiction in Australia, with different rules.

It is important to check with the relevant authority that requires the statutory declaration as to which one they will accept. Usually the appropriate statutory declaration will be the one for the jurisdiction for which the relevant matters need to be proved, but this is not always the case. For example, many land transfer matters will require a statutory declaration from the jurisdiction in which the person making the statutory declaration is based, not one from the jurisdiction in which the relevant land is located. So this should always be checked.

All Australian statutory declarations must be signed in front of a witness. Who can witness the declaration depends on the jurisdiction. No oath or affirmation is required. Again, there may be additional requirements such as appropriate identification requirements in New South Wales in certain circumstances.

The truth, the whole truth and nothing but the truth in Australian affidavits

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The promise to tell “the truth, the whole truth and nothing but the truth” is familiar to most people who have seen a court proceeding either on television or in real life. The phrase is used as part of the oath administered to witnesses who are giving oral evidence in court in Australia.

The wording requires the witness not just to tell the truth, but also that it be the “whole truth.” This is slightly different from the wording often used when a witness swears or affirms an affidavit in Australia, which sometimes does not include a reference to the whole truth. There is therefore a question about whether the person swearing an affidavit needs to tell the whole truth in their affidavit, or just give the relevant information that favours their case.

The courts have been clear that people swearing affidavits should be careful to tell the whole truth in their affidavits, and to avoid creating a misleading situation by omitting relevant information which shows the true story.

The leading case about this in Australia is Re Thom [1918] NSWStRp 4; (1918) 18 SR (NSW) 70. In that decision the High Court condemned the practice of telling half truths by the “conscious withholding of information which[…] would be desirous of knowing in order to do justice to all parties.” Griffith CJ, with whom Gordon and Ferguson JJ agreed stated:

It is of the greatest importance that any mere casuistry in the presentation of evidence should be strictly avoided by those entrusted with the responsible duties of a legal practitioner. It is perhaps easy by casuistical reasoning to reconcile ones mind to a statement that is in fact misleading by considering that the deponent is not under any obligation to make a complete disclosure. By this means a practitioner may be led into presenting a statement of facts which, although it may not be capable of being pronounced directly untrue in one particular or another, still presents a body of information that is misleading, and conceals from the mind of the tribunal the true state of fact which the deponent is professing to place before it. For that reason it is proper on such an occasion as this to express condemnation of any such casuistical paltering with the exact truth of the case.

More recently, in ERS Engines Pty Ltd v Wilson (1994) 35 NSWLR 193 Young J said it was “completely unacceptable” for a witness “to only give the court a half truth.” Young J stated:

It cannot be emphasised too greatly that one’s obligation in making an affidavit is the same as when one is giving evidence in the witness box. One is to tell the truth and the whole truth.

The decision of Young J in ERS Engines has been subsequently cited several times with approval by the New South Wales Supreme Court. In Maio v Sacco [2009] NSWSC 413 White J cited ERS Engines and said:

It bears repetition that in swearing or affirming an affidavit a witness says that the affidavit contains not only the truth, but the whole truth and nothing but the truth.

Can a lawyer who has prepared an affidavit also witness it in Australia?

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This post explains whether a lawyer who has prepared an affidavit for a person to swear or affirm can also be the witness for that affidavit in Australia. This issue sometimes arises in litigation when legal practitioners want to know whether it is legal or ethical for them to witness an affidavit to be sworn or affirmed by their own client, or whether an independent witness is required instead.

The answer is that in all Australian jurisdictions except Western Australia, a lawyer who has prepared an affidavit may also witness it. There is no rule or practice that requires a witness to be independent of the person making the affidavit.

The matter was considered in the Federal Court by Selway J in D’Arrigo v Carter, in the matter of Gartner Wines Pty Ltd & the Corporations Act 2001 [2003] FCA 5 (it has not been re-considered in Australia since).

Selway J explained that there was common law authority that “it has been the rule since the time of Lord Hardwicke that the Court does not accept an affidavit sworn before the solicitor in the cause,” quoting from the reasons of Kay J in Bourke v Davis (1889) 44 Ch D 110 at 126. However his Honour then stated that this duty “has been set aside by rule or legislation in most jurisdictions.”

Selway J concluded:

I note that there is nothing in the [Corporations] Act or in s 45 of the Federal Court Act 1976 (Cth) [which explains who may witness an affidavit] or in s 186 of the Evidence Act 1995 (Cth) or otherwise which would require the person before whom an affidavit is sworn to be impartial and independent of the deponent. Nor is there anything in those provisions which would impose a duty upon a person taking an oath independently to verify the truth or otherwise of that which is deposed to. Nor, in my view, is there any obvious reason why such requirements would be implied.

The conclusions of Selway J are probably applicable to all other Australian jurisdictions except Western Australia, as those jurisdictions also do not distinguish in their legislation between independent and non-independent solicitors for the purpose of witnessing affidavits. In those jurisdictions solicitors regularly witness affidavits for their own clients.

The position in Western Australia is different. In Western Australia, s 9(7) of the Oaths, Affidavits and Statutory Declarations Act 2005 (WA) explicitly bars the practice, stating:

An experienced legal practitioner who has participated in any way in preparing an affidavit, or in the proceedings in which an affidavit is intended to be used, is not an authorised witness for the affidavit.

Giving written evidence by affidavit in the United States District Courts

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Giving written evidence by affidavit in the United States District Courts is easy! To give written evidence in this form, you will need:

  • to have a religious belief in a god or multiple gods. The oath with which you swear your affidavit is an appeal to this god or gods to bind your conscience to tell the truth; and
  • a notary public before whom you can swear the affidavit.

If you do not have both a religious belief of this kind and access to a notary public then you should give your evidence by unsworn declaration instead. Your evidence given in this way will be equivalent to evidence given by affidavit.

Swearing your affidavit

To swear an affidavit, complete the affidavit form for the United States District Courts below. You must then attend before a notary public to swear the affidavit. You must not sign the document before you attend before the notary public.

When meeting the notary you should take photo ID. The notary may charge you a small fee to swear the affidavit.

Contents of your affidavit

In your affidavit you should:

  • State the facts of which you have personal knowledge;
  • Attach any relevant documents;
  • Set out the facts in short, numbered paragraphs (usually of no more than 2-3 sentences); and
  • Follow a logical order (almost always this is chronological).

Free blank affidavit form in Word format for the United States District Courts

You can download our awesome free blank affidavit form in Word format for use in the United States District Courts below. Some of the great features of our forms include:

  • a clean, modern font that’s appropriately formal but also easy-to-read;
  • a properly laid-out document with neat margins and page-numbering;
  • detailed notes to help you complete the form correctly; and
  • bespoke auto-numbering for paragraphs that works first time and looks great.

Download our free affidavit form for the United States District Courts here:



 

How to give written evidence by unsworn declaration in the United States District Courts

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Giving written evidence by declaration in the United States District Courts is easy! Ever since Congress enacted 28 USC § 1746 in 1976, people have been able to give written evidence in these courts by declaration instead of by affidavits.

The declaration process is quicker than swearing an affidavit because no notary public or other witness is required when the document is finalised. For this reason, declarations have become more common than affidavits as a way of giving evidence. This page will help you understand and prepare an unsworn declaration. A blank declaration form in Word format for free download is at the bottom of the page.

Declarations v affidavits

Provided your unsworn declaration is in the correct form, it will be of the same effect as an affidavit. The important features of an unsworn declaration are that it:

  • does not have to be made before a notary or any other witness;
  • must contain the declaration as to the matters in it being true and correct under penalty of perjury, as found in the form; and
  • must be signed and dated by the person making the unsworn declaration.

Our free declaration forms are linked at the bottom of this page and will help you make your declaration correctly.

Contents of your declaration

In your unsworn declaration you should:

  • State the facts of which you have personal knowledge;
  • Attach any relevant documents;
  • Set out the facts in short, numbered paragraphs (usually of no more than 2-3 sentences); and
  • Follow a logical order (almost always this is chronological).

Free blank declaration forms for the United States District Courts

You can download our awesome free blank declaration forms in Word format for use in the United States District Courts below. Some of the great features of our forms include:

  • a clean, modern font that’s appropriately formal but also easy-to-read;
  • a properly laid-out document with neat margins and page-numbering;
  • detailed notes to help you complete the form correctly; and
  • bespoke auto-numbering for paragraphs that works first time and looks great.

There are two different blank declaration forms forms for downloand, and your choice of form will depend on whether your unsworn declaration is to be made inside or outside the USA (this is a requirement of 28 USC § 1746). Please carefully choose the correct form from our downloads here: