witness statement

Witness statements are formal court documents made by witnesses to set out the facts upon which the party in the proceedings for whom it is made relies. It is the evidence that the witness would give orally in the witness box for the witness they appear for. A witness statement is one of the three forms of evidence which a natural person may adduce to a court during the course of legal proceedings.

The witness statement may be made for the purposes of supporting an application for interim relief (such as an injunction) or relied on at the trial in the litigation. Since the Civil Procedure Rules came into effect in 1999, such statements stand as the evidence in chief of the witness at the trial unless the court orders otherwise.

Formal Requirements

Witness statements have a prescribed form. The document must specify:

1. the title of the proceedings;
2. the name of the person making the statement, as well as his or her address and occupation (and if not employed, a description of the person). If the person is employed by a party, it must say so along with their position;
3. the party to the proceedings on whose behalf the statement was made;
4. the exhibits made in conjunction with the witness statement;
5. the date it was made;
6. where previous witness statements have been made in the proceedings by the deponent, the number of witness statement.

Also, the witness statements must have numbered paragraphs, and ideally, numbered pages. Each page of any exhibits should be paginated sequentially.

Contents

Witness statements are made in the witness’s own words in the first person. Statements should usually follow a chronological order of events, by numbered paragraphs. It is a statement of facts within the personal knowledge and belief of the person making the witness statement. The person making the statement must specify the source of the information or belief laid out in the statement if the stated fact is not within his or her direct knowledge.

Statements must be produced on a single side of A4 paper and have a right margin of 35 mm.

Exhibits

In many cases, a witness will need to refer to documents upon which they rely or are otherwise relevant to the witness statements. These documents are compiled into exhibits, and named sequentially if there are more than more. For instance, the first exhibit of a witness statement of Sarah Mary Jones, would probably be names exhibit “SMJ1” and the second “SMJ2”. There is nothing preventing the witness from collating similar documents into a single exhibit, rather than creating separate exhibits for each document. The pages of each exhibit must be numbered sequentially.

It must contain a statement verifying the truth of the statements made within it.

Statements of Truth

A witness statement must be verified by a statement of truth. Proceedings for contempt of court may be brought against a person if they make, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. Proceedings may be brought by the Attorney-General or with the permission of the Court.

Service of Witness Statements

When statements are made in support of interim injunctions or other relief, they must be served with the application notice when the application is made on notice.

Witness statements are made to prove facts which are to be determined by the court at the trial. Ordinarily in commercial litigation, witness statements are exchanged simultaneously with the other litigants in accordance with the case management directions made by the court, after the pleadings have closed and disclosure and inspection has been given by all of the parties to the litigation.

The Trial

Witness statements are taken as the evidence-in-chief of the witness at the trial unless the court orders otherwise. The witness is limited to speaking to matters referred to in his witness statement, unless there is a good reason to expand upon those matters in re-examination. Evidence-in-chief is the evidence that the witness gives in support of the case of the litigant for whom the statement was made.

Witnesses are required to attend court for cross-examination by the opposing parties in the litigation if required to do so by the court or the opposing parties. Where they do not appear, the evidence is treated as hearsay evidence. Cross-examination may relate any matter that the witness is able to deal with in respect to the issues in dispute in the litigation and the witness’s credibility. As such, cross-examination is not limited to matters referred to in the witness statement – including statements made outside court which are inconsistent with the allegations of face in the witness statement.

Subject to very limited exceptions, witness statements which have merely been exchanged may only be used for the purposes of the litigation, by way of an application of the collateral purpose rule. A witness is at liberty to give permission for the statement to be used for another purpose, as is the Court. Documents read by the court in public become public documents, and the collateral purpose rule no longer applies, as the document would have become a public document.