How to prepare an affidavit - part 3

This is the start of our Legal How-To series for Early Career Lawyers. Let’s kick it off with a highly-requested one: How to prepare an affidavit. Originally written by the Honourable Kylie Downes QC for Proctor, this three-part explainer outlines everything you need to know about writing an affidavit. Find part two here.

This article considers particular rules of evidence which apply to affidavit evidence to be adduced in a trial in the state courts.

Evidence relevant to credit of opponent’s witness

As a general rule and in order to be admissible, the proposed evidence in a trial affidavit must be relevant. That means it must tend to prove or disprove a fact in issue on the pleadings.

An exception to this general rule arises when a witness’ evidence is aimed at discrediting another witness.

For example, if the evidence of another party’s witness is inconsistent with an earlier statement made by that witness, then a witness can give evidence of that earlier inconsistent statement if certain conditions are met.

Section 18 Evidence Act 1977 (Qld) (EA) permits such evidence to be tendered to encourage the court to infer that the witness who made the prior inconsistent statement is unreliable or ought not to be believed. Section 18 provides: “If a witness upon cross-examination as to a former statement made by the witness relative to the subject matter of the proceeding and inconsistent with the present testimony of the witness does not distinctly admit that the witness has made such statement, proof may be given that the witness did in fact make it.”

Other examples of evidence which might, depending on the circumstances, be admissible to discredit a witness includes evidence:

• that the witness has been convicted of a criminal offence,¹ especially one involving fraud, or has otherwise engaged in discreditable acts
• that the witness has been disbelieved on oath in another case
• of facts which tend to demonstrate bias, if that is not obvious from the witness’ connection with the parties
• that the witness has some physical impediment which would render their evidence unreliable.

Rebutting allegation of fabrication of testimony

The general rule is that a witness cannot give evidence of what they said on a previous occasion to show that their present evidence is consistent with the earlier statement and they ought to be believed on oath.

If, however, it is suggested to your witness under cross-examination that they have fabricated or invented their testimony, or that it is a construction subsequent to the events in question, then evidence of an earlier consistent statement made by your witness may be admissible.

The prior consistent statement is not admitted as evidence of the truth of its contents but is admitted to seek to restore the credibility of your witness.

Exceptions to rule against hearsay

As a general rule, a witness cannot give evidence of any statement made out of court in the present proceedings and which is being tendered to prove the truth of the contents of the statement. There are three important exceptions to this rule:

Admissions against interest

By this evidence, a witness will have seen, heard or read something which came from the other party to the case (or their authorised agent) which either:

• supports your client’s case, or
• contradicts or undermines the other party’s case.

For example, A and B entered an oral contract but later disagreed about its terms. Before any court action was brought, A called C and said that he had a bad hangover on the day of his discussion with B, he did not have a good memory of their discussion and so B’s version of what was discussed was “probably correct”. C can give evidence of A’s statement to him as evidence of the truth of its contents because it constitutes an admission against A’s interest.

If you propose to rely on this exception to the hearsay rule, it is important to remember that the entire statement must be included in the affidavit.

Section 92 Evidence Act 1977

Section 92 EA permits documentary hearsay evidence to be admitted by a state court in civil proceedings if certain pre-requisites are met, namely:

1. Direct oral evidence of a fact would be admissible and the statement contained in the document tends to establish that fact, and
2. The maker of the statement in the document had personal knowledge of the matters dealt with by the statement. Personal knowledge of the maker of the statement may need to be established by other evidence such as evidence of the person’s involvement in the matters referred to in the document. For example, the statement may refer to the content of oral statements at a meeting which the maker of the statement attended. Evidence could be adduced from another attendee at the meeting to prove that the maker of the statement was present at the meeting, and
3. The maker of the statement is called as a witness in the proceeding, or
4. One of the requirements of section 92(2) is met.

The requirements of section 92(2) include that the maker of the statement is dead or is unfit to give evidence by reason of bodily or mental condition; the maker of the statement is not in Queensland and it is not reasonably practicable to secure their attendance; the maker of the statement cannot with reasonable diligence be found or identified; or the court considers that undue expense or delay would be caused by requiring the maker of the statement to be called.

Now that witnesses are able to give remote evidence by telephone or by video-link, reliance on the fact of a witness being outside Queensland (without more) will usually not be sufficient to demonstrate that it is not reasonably practicable to have the maker of the statement give evidence in the trial. For similar reasons, undue expense or delay in calling a maker of a statement will be unlikely to be demonstrated if the maker of the statement is available to give evidence by telephone or video link.

Alternatively, section 92 EA permits documentary hearsay evidence to be admitted by a state court in civil proceedings if alternative pre-requisites are met, which are set out below. This is the most common aspect of section 92 EA which is relied upon in trials, and probably also the most misunderstood. As will be seen, an assertion from the bar table that the document is a ‘business record’ will not suffice. The elements are as follows:

1. Direct oral evidence of a fact would be admissible and the statement contained in the document tends to establish that fact, and
2. The document is or forms part of a record relating to any undertaking and made in the course of that undertaking, and Section 3 of the EA defines ‘undertaking’ as including public administration and any business, profession, occupation, calling, trade or undertaking. The critical issue will be whether the document forms part of the ‘record’ of the undertaking. There is no definition in the EA. Should you wish to rely on this part of section 92 to tender the document, you should locate authority which supports the recognition of the relevant document as being a record within the meaning of section 92. You should also prepare admissible evidence which shows that this requirement is satisfied.
3. The document was made from information supplied (directly or indirectly) by persons who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information which they supplied. Again, evidence will need to be prepared and tendered to support this element. For example, if it was part of a person’s role in an organisation to gather certain information and record it in the financial accounts of the organisation, then it may reasonably be supposed that the person had personal knowledge of the information which they recorded, and
4. The supplier of the information is called as a witness in the proceeding, or
5. One of the requirements of section 92(2) is met.

The requirements of section 92(2) include that the supplier of the information is dead or is unfit to give evidence by reason of bodily or mental condition; the supplier of the information is not in Queensland and it is not reasonably practicable to secure their attendance; the supplier of the information cannot with reasonable diligence be found or identified; or the court considers that undue expense or delay would be caused by requiring the supplier of the information to be called. 

Section 1305 Corporations Act

This permits the admission into evidence of a book kept by a body corporate under a requirement of the Corporations Act 2001 (Cth) (CA) and “is prima facie evidence of any matter stated or recorded in the book”.

The term ‘books’ has a wide definition under section 9 of the CA. It includes a register, any other record of information as well as financial reports or financial records, however compiled, recorded or stored.

The more critical requirement is that the book must be kept by the body corporate under a requirement of the CA. Before seeking to tender a document pursuant to section 1305, you should satisfy yourself that the document is ‘required to be kept’ under a requirement of the CA and what that requirement is. It is not enough that the document was in fact kept; there must be a legislative requirement to do so.

The most common requirement which is relied on is section 286 of the CA, which sets out the obligation on companies to keep certain ‘written financial records’.
Section 286 requires that companies keep written financial records that:

Section 9 defines ‘financial records’ as including (amongst other things) invoices, receipts, working papers and other documents needed to explain the methods by which financial statements are made up and adjustments to be made in preparing financial statements.

Section 1305(2) of the Act provides that if a book ‘purports’ to be one kept by a body corporate, it is taken to be a book kept as mentioned in section 1305(1), unless the contrary is proved.

However, that does not mean that any time a document is tendered on that basis, the court will accept that section 1305(1) is satisfied. Consideration will need to be given to adducing evidence to demonstrate that the book was kept by the body corporate as a matter of fact.

Conclusion

When proposing to include evidence in an affidavit which falls within an exception to an exclusionary rule of evidence, consideration will need to be given as to why it is said that the exception operates and how to establish that it operates, including by way of additional evidence if required.
If it is decided that an exception applies, it is recommended that ancillary evidence and any relevant cases and copies of any relevant sections of legislation be prepared and taken to court in readiness for an argument about admissibility, should one arise.

Footnote:
¹See section 16 Evidence Act 1977, which permits proof of the conviction if denied.

You can find part 1 here.