Affidavits, Statutory Declarations and Witness Statements

Posted on Jan 31, 2018 by Terry Morgan   |   Categories: Criminal & Traffic Law

The terminology used in the legal industry regarding statements of evidence can be confusing. Phrases such as affidavit, statutory declaration and witness statement are thrown around and are often used interchangeably in common lexicon.

This article explores the difference between these documents and how they are used within the legal system:

1. Affidavit

An affidavit is a statement of written facts which the maker either swears or affirms to be true before a qualified witness. This is essentially the paper based version of swearing upon the bible or making an affirmation in Court before giving verbal evidence.

An affidavit sets out the evidence that the maker would give under oath in Court and they are used extensively in civil proceedings to expedite the Court process. The affidavit will be read in Court before objections are made to the material within it. The material that is not struck out becomes the witness’ evidence in chief on which they are then cross-examined. As such, it is important that an affidavit is carefully drafted to comply with the rules of evidence to avoid its content being struck out.

An affidavit is only used when Court proceedings have been commenced and will usually be sworn by a plaintiff, a defendant or a witness.


2. Statutory Declaration

A statutory declaration is a document that is similar in status to an affidavit in that the maker of the declaration swears or declares the contents to be true and correct before a qualified witness, however is used when there are no Court proceedings (for example when you need to prove your identity to a government department).

As the contents will not be subject to the rules of evidence, the particular way a statutory declaration is drafted is not as regimented as an affidavit, however the maker must ensure that the contents are correct as they may be liable to sanctions for making a false declaration.


3. Witness Statement

Witness statements are used throughout the legal system for different purposes. The major difference between a witness statement and an affidavit is that a witness statement is not sworn by its maker, rather it is simply signed. As such, a witness statement cannot simply be read as evidence in Court as an affidavit would be.

It is common however for a witness to be sworn into the witness box before being asked whether the contents of their witness statement is true and correct. If the witness answers yes, they can then tender the witness statement into evidence and the same procedure as an affidavit is then followed.
As such, if a witness intends to tender their statement in Court it is important that it is carefully drafted.


What happens if I make a false statement?

If you are found to have made false statements in an affidavit or statutory declaration you may be charged with a criminal offence under the Oaths Act. A false statement given in an affidavit gives rise to a charge of perjury, whereas a false declaration made in a statutory declaration can result in a term of imprisonment of up to 5 years. It depends on how a witness statement is used as to whether any punishment is available for a false statement.

If you have accidentally made a false statement you should rectify it immediately to avoid the above ramifications.