NSW judge refuses to admit affidavit adopting contents of another’s affidavit

I provided my 25 handy hints on affidavits earlier. Two of them were:

  • it is undesirable for one deponent to refer to another’s affidavit and effectively incorporate it by reference; much better to reiterate the whole story in the second witness’s own words;
  • a few inconsistencies between affidavits enhance their credibility rather than detract from it — you can get all your ducks in an implausibly neat line, in other words: see Timms v Commonwealth Bank of Australia [2001] NSWSC 560 at [69]ff by way of example;

Now it could probably only happen in NSW where they get very excited about the rules relating to affidavits (I do not say that disparagingly, au contraire), but in Singh v Singh [2007] NSWSC 1357, one Justice Barrett yesterday actually refused to admit into evidence the following statement in affidavits of Mr Singh, Mr Singh, and Mr Singh: “I agree with the contents of his [another Mr Singh’s] affidavit”. (Tragically, his Honour missed the pun about sikhing too enthusiastically to singh from the same songbook.)

Evidence is supposed to be comprised exclusively of facts from the witness’s own knowledge, and opinion which the witness is qualified to give, and it is generally impermissible to give oral evidence about the contents of a document. Since an affidavit stands in substitution for oral evidence at trial, the rule applies equally to affidavits. Either the statement in the affidavits of the three Messrs Singh offended these rules, or they were irrelevant. I will not bother trying to condense the judgment, which is fairly to-the-point. So here it is, word for word:

‘1 A hearsay objection is taken by the defendants to one paragraph of each of three affidavits affirmed on 18 February 2007. They are the affidavits of three of the plaintiffs, Sukhdev Singh, Balbir Singh and Terlochan Singh. Each refers to an affidavit of another plaintiff, Shaun Jit Singh, of the same date which, obviously enough, was affirmed before the other three. I say this because each of the three deponents says that he or she has read the affidavit of Shaun Jit Singh sworn on 18 February 2007 and then goes on to say “I agree with the contents of his affidavit”. This is the paragraph to which objection is taken.

2 The particular paragraph, as it appears in each of the three affidavits in question, is meaningful only when one has regard to what is said in Shaun Jit Singh’s affidavit. He makes statements to the following effect in paragraphs 3 to 10:

(a) that he does not know and cannot accept that the board of trustees of the association was provided with applications from 47 persons seeking to become trustees of the association;
(b) that he notes that some of the applications annexed to some quite separate affidavit are for ordinary membership
(c) that he does not admit that certain identified documents are copies of 46 of the 47 applications;
(d) that he does not admit that the board of trustees ever resolved upon a particular course of action in relation to the 47 applications;
(e) that he denies that a particular meeting was a joint meeting of the board of trustees and the executive committee, it being in reality a board of trustees meeting only;
(f) that he recollects that no application forms were presented to the meeting and no motions to admit members were proposed or resolutions passed;
(g) that he recollects Terlochan Singh having spoken certain words at the meeting; and
(h) that certain things (described) were done by certain persons at a meeting on 8 February 2003.

3 These matters, as I have said, are deposed to in paragraphs 3 to 10. The affidavit of Shaun Jit Singh goes on for another 48 paragraphs dealing with matters of reply to a number of affidavits served by the defendants and to be read in the defendant’s case. Many of the paragraphs merely refer to a passage in an opposing affidavit and say, “I do not admit” or, “I deny”, thus adopting an undesirable approach that inappropriately casts an affidavit in the role of a pleading.

4 The statement of each of the three subsequent deponents that he or she “agrees with” the content of Shaun Jit Singh’s affidavit, read literally, may mean that, where Shaun Jit Singh says in his affidavit that he does not know something, or that he notes something or that he denies something or that he recollects something, the immediate deponent is saying that Shaun Jit Singh does not know the particular thing or notes the thing or denies the thing or recollects the thing.

5 On another reading, however, each of the immediate deponents is saying that the immediate deponent does not know the thing that Shaun Jit Singh identifies as not known by Shaun Jit Singh, that the immediate deponent notes the things that Shaun Jit Singh identifies as noted by Shaun Jit Singh, that the immediate deponent recollects the thing that Shaun Jit Singh identifies as recollected by Shaun Jit Singh and that the immediate deponent denies the thing that Shaun Jit Singh identifies as denied by Shaun Jit Singh.

6 If the first interpretation is the correct one, the evidence of the immediate deponent is irrelevant. Whether any of the immediate deponents accepts or does not accept the accuracy of what Shaun Jit Singh says in his affidavit about the content of his own brain is of no probative value in relation to any fact in issue.

7 If the second interpretation is the correct one (and I suspect that that is the intended meaning), I consider that the hearsay objection taken on behalf of the defendants by reference to s.59 of the Evidence Act 1995 is well taken.

8 There are recent cases which have considered the somewhat similar situation where a witness, in his or her affidavit, adopts what he or she earlier said in a record of interview or similar document. Despite the general rule that a witness “ordinarily cannot give oral evidence by reference to the contents of a document” (AWA Ltd v Radio 3XY Pty Ltd, unreported, NSWSC, 21 June 1991, McLelland J), the general approach in those recent cases is that the witness’s evidence may be given in the way I have outlined, but that the procedure gives rise to a need to exercise caution, particularly where some time has elapsed between preparation of the earlier record and the swearing of the adopting affidavit. The particular cases I have in mind are Alfred v Lanscar [2007] FCA 833 and Temple v Powell [2007] FCA 987.

9 In concept, I suppose, there is no difference between adopting one’s own prior statement and adopting someone else’s prior statement. But in the latter case a more conservative approach is indicated.

10 The position now before me, involving unqualified adoption in one witness’s affidavit of an account given on affidavit by another witness, was the subject of comment in a note entitled, “Common problems with the use of affidavits” by Mr Justice Young at (1992) 66 ALJ 298. He said at page 299:

“[S]uppose three police interview a suspect, and one of the officers gives evidence in affidavit of the interview and the others say that they have read their colleague’s affidavit and swear that it accurately records what happened in the interview. The benefit of this procedure is that it saves time in the proceedings, but, if objected to, would be rejected. It infringes the hearsay rule.”

11 That statement was made before the Evidence Act but, in my view, it still holds good, having regard to s.59 and the Act’s definition of “previous representation”.

12 The passage objected to (being, in each case, simply that the deponent agrees with the contents of Shaun Jit Singh’s affidavit), raises the problem – and it is a fundamental problem – that the witness is not unambiguously giving evidence of what he or she saw or heard. It is that fact that gives rise to the hearsay difficulty.

13 A witness’s evidence, given on affidavit, must record facts to which the witness directly testifies. The unease that arises when two witnesses adopt exactly the same form of words to describe some past event is palpable enough. The unease becomes intolerable when the witness makes no attempt to give his or her own account and merely adopts another person’s account. The intolerable unease finds release in the application of the hearsay rule.

14 In the affidavits of Sukhdev Singh affirmed 18 February 2007, Balbir Singh affirmed 18 February 2007 and Terlochan Singh affirmed 18 February 2007, the paragraph reading, “I agree with the contents of his affidavit” is rejected.’

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