The usual way of giving evidence in Court is via a witness statement or affidavit. The other way is to give evidence orally from the witness box, however this is not often done.
The person giving a witness statement or affidavit may be cross-examined on the statement/ affidavit by the other party or parties to the legal proceeding.
If you are giving a witness statement or affidavit it is critical to prepare it properly, so that your evidence cannot be undermined by the other party/ parties, for example because:
- it has not been sworn/ affirmed in accordance with relevant statutory requirements
- it contains material which is inadmissible eg because it is not relevant to your claim, defence or application
- it does not contain relevant material in support of your claim, defence or application
- it is inconsistent with your claim, defence or application.
Here are some further tips when preparing a witness statement or affidavit:
- Write chronologically, as if telling your story from the beginning to the end
- Write in the ‘first person’, including what you saw, heard, said or did
- Use numbered paragraphs which contain 2-3 concise sentences at most
- Use headings to introduce different topics
- Ensure that you refer to all the facts, matters and circumstances required to support your claim, defence or application
- If you are recounting a conversation with someone, only say that you or the other person said “ABC” if you can recall the words precisely, otherwise say that you or the person said “words to the effect” of “ABC”. The Courts do not expect witnesses to have perfect memories, and expect that a witness’ memory will fade over time
- Ensure that you attach all of the documentary evidence required to support your claim, defence or application.
Drafting a witness statement or affidavit is risky if you don’t know what you’re doing, because there is a high potential that you won’t give all of the evidence required to support your claim, defence or application. The Court will almost never give you a second chance.
Please contact me if you would like assistance preparing a witness statement or affidavit.
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