Did you know: In some instances, an Affidavit can be used instead of a person’s oral evidence.
What is an Affidavit
æfɪˈdeɪvɪt/ (Affidavit): -“he who has sworn an oath”
The word Affidavit is derived from Medieval Latin, meaning “he who has sworn an oath” or “one who has pledged his faith”. Historically, it conveyed a personal pledge that the statements made were truthful and could be relied upon.
In modern legal terms, an Affidavit is a formal written statement in which the deponent swears or affirms that the information contained in the Affidavit is true. It is used to present evidence in writing and can simplify court proceedings by reducing the need for oral evidence. The deponent of the Affidavit may still be required to attend court for cross-examination.
Key Requirements
An Affidavit must be based on facts within the deponent’s personal knowledge. It must be signed in front of an authorised witness (Justice of the Peace, solicitor, or barrister), who also signs the Affidavit to attest to its execution. Each page must be initialled by both the deponent and witness. Any changes must be made before signing. Failure to follow these requirements can render the Affidavit inadmissible or reduce its evidentiary weight.
Drafting Your Affidavit
Affidavits should be written in the first person with facts presented in consecutively numbered paragraphs, each paragraph addressing a distinct event or assertion. References to documents should be incorporated as exhibits, clearly marked with sequential letters such as Exhibit “A”, Exhibit “B”, and described within the Affidavit.
The Affidavit should avoid irrelevant, unnecessary, or scandalous material. Opinions should generally be limited to those qualified to provide expert evidence. Hearsay evidence is typically inadmissible, except where statutory exceptions apply.
Language should be precise, avoiding vague descriptors such as “always” or “often”, and instead employing measurable, specific terms where possible.
Witnessing an Affidavit
Witnessing an Affidavit is the process by which an authorised person (e.g. a Justice of the Peace, solicitor, or barrister) observes the deponent sign the document and certifies that it was properly executed. This ensures the Affidavit is legally valid and admissible as evidence in court.
Luckily for our Queensland, New South Wales, Western Australia, Victoria and Tasmanian Lawyers, we are not required to drive and physically witness every deponent’s signature on an Affidavit anymore. In these jurisdictions an Affidavit may be made in the form of an electronic document and may be electronically signed. Northern Territory and South Australia lawyers don’t enjoy the same luxury. These states still require Affidavits to be physically signed in the presence of an authorised witness. This is known as a ‘set signature’.
“Stretching” the Truth (or simply lying)
Don’t be tempted to “enhance” the story! Providing false information in an Affidavit is a serious offence. In Australia, knowingly making a false statement in an Affidavit can constitute perjury or result in a finding of contempt of Court, both of which carry potential criminal penalties, fines, or even imprisonment. Beyond legal consequences, a false Affidavit can undermine the credibility of the deponent and any associated legal case, may lead to the Affidavit being struck out or disregarded by the Court, and could expose anyone involved in preparing or witnessing it to professional disciplinary action.
Artificial Intelligence Restrictions
Though it may be tempting to ask Chat GPT to write a simple Affidavit for you, this should be avoided at all costs. Under the Uniform Civil Procedure Rules 2005 (NSW), the use of generative artificial intelligence to prepare Affidavits or witness statements is expressly prohibited. While AI may be employed for ancillary documents such as submissions, reports, chronologies, or indexes, Affidavits must include a statement confirming that AI was not used in their preparation. Confidential information must not be disclosed to any AI tool. Legal advice should be sought if there is any uncertainty regarding the application of AI.
While only New South Wales expressly prohibits the use of generative AI to prepare Affidavits, as of March 2026, other Australian jurisdictions have guidance cautioning its use, and it is likely that express prohibition is soon to follow.
The content of this article is intended to provide a general guide to the subject matter. Specific advice should be sought about your specific circumstances.
