Evidence - statements of fact made to the court

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The New Zealand judicial system is adversarial. This means the Judge relies on at least two parties presenting opposing submissions and, where appropriate, evidence.

Evidence is presented to the court when the parties do not agree on the facts relating to a proceeding. This can be done by a witness in person or by affidavit.

When a person is giving evidence, they are allowed to make a statement of fact only. They are not allowed to offer opinions about what decision should be made. The parties must make their closing submissions based on the evidence presented.

Affidavits – written statements of fact used as evidence

Affidavits are documents that contain information said to be true by the person who swears or affirms the affidavit. Affidavits are used to present evidence in written form.

An affidavit may be sworn (by taking an oath on a religious book) or affirmed (by making a statement that the contents are true, with no reference to religion).
The information below relates to the basic requirements of affidavits. The rules for making affidavits are found in rules 9.58 to 9.79 of the District Courts Rules (external link)

Affidavit procedure

Generally the following procedure will be adopted when filing and serving affidavits:

  • The plaintiff must file and serve the affidavits they want to present within 10 working days after an agreement to give evidence by affidavit was filed or, if the rules say that evidence can be given by affidavit, 10 working days after the date when pleadings closed.
  • The defendant will then file and serve the affidavits they want to present within 10 working days after being served with the plaintiff’s affidavits.
  • The plaintiff will then, within a further 10 working days, file and serve the affidavits they want to present in reply. The content of these affidavits must strictly reply to points raised by the defendant.

Content of an affidavit

An affidavit should contain all the written evidence that you want to present. It should be written in the first person (for example, ‘I saw…’, ‘he said to me…’), and must state the full name, job and home address of the person making it. It must cover only matters that would be allowed if you were giving evidence at a trial and, if it is an affidavit in reply, it must be strictly in reply. If the affidavit includes unnecessary material, the court may refuse to read it and may order you to pay the costs caused by that affidavit.

If an affidavit refers to documents, then those documents must be attached and referred to as an exhibit (for example, ‘bank statement of plaintiff, dated 01/01/01, marked as EXHIBIT A’). The exhibit itself must be marked with the letter or number assigned to it in the affidavit (for example, the bank statement should be marked with an ‘A’).

For a document to be presented as an affidavit it must be sworn or affirmed by you in front of a person lawfully authorised to take oaths and declarations.

That person will then mark the exhibit with an exhibit note.

Before the document is sworn or affirmed you should check that you have included all the information you want to present as evidence, and that the information you have provided is ‘true and correct to the best of your knowledge and belief’. A document can be considered to be true and correct to the best of the author’s knowledge and belief if they have taken reasonable care to make sure that all the information contained in it is true, and there are no mistakes in the document.

Mistakes in affidavits are not easily fixed and you will usually need to file another affidavit that corrects the initial affidavit. If, after swearing an affidavit, you realise that it contains a mistake you should contact the court registrar. The court registrar will tell you if you need to file a second affidavit or if you can amend the initial affidavit by hand (in front of the person who took the affidavit – see below).

If the affidavit has more than one page, excluding the cover page, then you must initial every page except the page that has been signed. You must also initial every exhibit.

Swearing and affirming

A document is not an affidavit until you have given an oath or affirmation verifying its contents. The oath or affirmation must be given in front of a person lawfully authorised to take oaths.

Persons authorised to take affidavits and affirmations

The following people are authorised to take oaths and affirmations on affidavits to be presented in the District Courts of New Zealand:

  • registrar/deputy registrar of a District Court or of the High Court
  • Justice of the Peace
  • solicitor.

If an affidavit or affirmation is made outside New Zealand, then the affidavit or affirmation can be taken by:

  • a Commissioner of the High Court of New Zealand who has authority in that place
  • a person authorised to take affidavits under the laws of that country
  • a person authorised by a Judge to administer the oath.

Offences for misleading justice

Misleading justice is viewed seriously by the courts. Knowingly misleading justice can be considered a criminal offence punishable by imprisonment. Criminal legislation on offences for misleading justice can be found in sections 108 to 117 of the Crimes Act 1961 (external link)

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Examination of witnesses – spoken statements of fact

Witnesses can be summoned to give evidence orally, and be examined on that evidence, by parties to a proceeding.

This section outlines the basic principles and procedures for summoning and examining witnesses.

Rules on evidence procedure are found under part 9 of the District Courts Rules (external link)

Issuing a witness summons

If you need a person to give evidence as a witness and you believe that person may not show up to give evidence, you can have a witness summons issued. A witness summons requires the person it is served on to come to court at a certain day and time so they can present evidence. They can’t leave the court until they are discharged or told by the court they no longer need to attend. A witness summons must be served on the witness personally.

A person who is summoned and fails to attend without lawful excuse may be fined up to $300.

If you want to issue a witness summons, use the witness summons template [DOCX, 55 KB]

Witness expenses

If you call a witness you must pay the witness an allowance and travelling expenses according to the relevant scale in the Witnesses and Interpreters Fees Regulations 1974 (external link)

The allowance and travelling expenses must be paid when the witness is served with the summons (see rule 9.44 of the District Courts Rules (external link) ).

Examinations and briefs of evidence/affidavits of evidence

A brief of evidence is a statement read in court by a witness. Only witnesses at a full trial will read a brief of evidence. After the witness has read their evidence they can be cross-examined (that is, questioned by the other party). After cross-examination the witness may be re-examined (that is, questioned by the party presenting the witness on matters raised in cross-examination).

Witnesses at a short or simplified trial must instead present an affidavit of evidence (which they do not read in court). Witnesses in short trials will only have to appear in court if they are to be cross-examined (that is, questioned by the other party). In simplified trials witnesses will only appear in court if they are to be cross-examined or the judge asks that they appear. After cross-examination the witness may be re-examined (that is, questioned by the party presenting the witness on matters raised in cross-examination).

The briefs of evidence/affidavits of evidence must be served on the other parties to the proceeding before the trial. Specific timetables for this will be set out in the rules or by a judge.

A brief of evidence/affidavit of evidence is given under oath, meaning it must be true and correct to the best of the witness’s knowledge and belief.

Offences for misleading justice

Misleading justice is viewed seriously by the courts. Knowingly misleading justice can be considered a criminal offence punishable by imprisonment. Criminal legislation on offences for misleading justice can be found in sections 108 to 117 of the Crimes Act 1961 (external link)

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