Affidavits play a crucial role in presenting evidence to the court.
These sworn statements are used in various legal proceedings to establish facts and provide testimony.
One of the key aspects of affidavits is the reliance on information and belief.
Reliance on Information and Belief in Affidavits
In some instances, a deponent may not have direct knowledge of certain facts but can still provide evidence in an affidavit based on information received from other sources or their belief in the truth of such information. This is known as relying on information and belief in affidavits.
This concept is particularly important when dealing with interlocutory proceedings, where there may be limited time and access to direct evidence.
A Western Australian Case: An Illustration
The Western Australian decision of Blythe v the State of Western Australia [2008] WASCA 10 offers insights into the practical application of reliance on information and belief in affidavits.
In this case, the affidavit contained hearsay evidence from a former student, but the deponent, Ms. Jorden, failed to identify the student or state that she believed the information provided by the student was true.
The appeal court found that this lack of compliance with the requirements of reliance on information and belief rendered the hearsay evidence inadmissible.
Rule Governing Reliance on Information and Belief in Affidavits
In Western Australia, the reliance on information and belief in affidavits is governed by Order 37 Rule 6 of the Rules of the Supreme Court 1971 (WA).
According to this rule, an affidavit used for interlocutory proceedings may contain statements of information or belief, provided the source of the information is disclosed and the deponent believes the information to be true.
Compliance with the requirements of Order 37 Rule 6 is crucial for several reasons:
Ensuring Admissibility: Properly drafted affidavits that adhere to the requirements of reliance on information and belief increase the likelihood of the evidence being admissible in court.
Countering or Challenging Evidence: Disclosing the source of the information allows the opposing party to counter or challenge the evidence presented in the affidavit.
Potential Prosecution for Perjury: Accurate and complete affidavits are necessary to hold deponents accountable for the veracity of their statements, enabling prosecution for perjury if required.
Lewkowski v Bergalin Pty Ltd
In the case of Lewkowski v Bergalin Pty Ltd (Unreported, WASCA, Library No 7675, 26 May 1989), the court emphasized the importance of following the proper form for statements of information or belief in affidavits. This form is essential not because of a desire for ritualized behavior but because it clearly indicates the source of the information, states the information, and expresses the deponent's belief that what was said is true. If this form is not followed, there is a risk that drafters of affidavits may produce inadmissible evidence under the relevant rules, as seen in In re J L Young Manufacturing Co Ltd [1900] 2 Ch 753.
The court stated, “Preferably statements of information or belief in affidavits should follow the form 'I have been informed by X and verily believe'.”
Following the proper form and complying with procedural rules ensures that evidence presented is admissible, allowing parties to effectively challenge or counter it and preventing potential miscarriages of justice.
In Blythe v the State of Western Australia [2008] WASCA 10, the primary court did not rule on the appellant's objection to paragraphs 18 and 19 of Ms. Jorden's affidavit. These paragraphs contained hearsay evidence that should have been deemed inadmissible. The appellant's objection should have been upheld, as the affidavit did not comply with the required form for statements of information or belief under the relevant rules (O 37 r 6). The affidavit failed to disclose the identity of the former student and did not state that Ms. Jorden believed what the student said was true.
As Wheeler JA noted in Westpoint Management Pty Ltd v Goakes [2002] WASCA 317, [14], the requirements of O 37 r 6 are essential because they reveal the original source of the hearsay information, provide an opportunity for an opponent to counter or challenge it, and enable prosecution for perjury if necessary.