What is the difference between an Affidavit and a Witness Statement?

An Affidavit is sworn evidence (generally sworn either on the bible or other religious text^ or by giving a non-religious affirmation) while a Witness Statement is unsworn.‍

^ Although a common practice. It is no longer necessary for a religious text to be available when swearing an Affidavit in NSW due to amendments to the Oaths Act introduced by Schedule 2 of the Identification Legislation Amendment Act 2011) and the Oaths Regulation 2011 (NSW).

Maker of the Witness Statement Required to Formally Adopt the Statement in the Witness Box

Another important difference between an Affidavit and a Witness Statement is that before the contents of a Witness Statement can become formal evidence as to the truth of the matter, the maker of the statement MUST adopt the statement in the witness box after being formally 'sworn in'.

Filed Affidavit becomes evidence once it is formally 'read' in Court by Counsel seeking to rely upon the Affidavit

The maker of the Affidavit, known as the deponent, still needs to attend Court in most cases as they will usually be required for cross-examination.

Credits:

This FAQ is extracted from page 201 of the Practitioner's Guide to Civil Litigation 4th edition published by the NSW Law Society (Civil Litigation Committee).

Important Notice:‍

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.