Victorian Coalition Government to act on affidavit problems

Attorney-General Robert Clark today announced the Victorian Coalition Government will today introduce legislation to address problems in criminal trials due to affidavits not having been properly sworn or affirmed.

Several recent court cases have raised serious issues about the admissibility of evidence arising from affidavits that were not properly sworn or affirmed by members of Victoria Police.

Recent advice received from Victoria Police and the Office of Public Prosecutions indicates that a large number of cases are potentially affected by deficiencies in the swearing or affirming of affidavits.

The legislation will ensure that failures to follow formalities associated with the swearing or affirming of affidavits do not result in the exclusion of evidence from legal proceedings. It will only apply to affidavits made before 12 November 2011.

The legislation is not intended to excuse or endorse the failure of some Victoria Police members to follow proper requirements for the making of affidavits.

Rather, the legislation is intended to prevent the possibility of trials being jeopardised solely because of possible procedural defects in the swearing or affirming of affidavits.

The legislation will be limited to rectifying problems that may arise because of affidavits not being correctly sworn or affirmed despite stating that they were made on oath or affirmation. It will not affect any other relevant rules relating to perjury or other evidentiary issues.

“The Victorian Coalition Government considers the potential consequences for the legal system of the issues arising from these affidavits remaining unremedied to be so grave that legislation is required,” Mr Clark said.

Affidavits are used to provide evidence to a court in support of an application for a warrant, order, summons or other legal process. The bill will ensure that failures to have followed formalities in the swearing or affirming of such affidavits do not result in the exclusion of evidence obtained under those warrants or other processes.

The Bill will apply to all affidavits made before 12 November 2011 and to any subsequent processes issued or actions taken in reliance on those affidavits. However, it will not affect the rights of parties in cases where a court has already ruled on the validity of the affidavit or process or the admissibility of the evidence obtained.

The Bill makes no changes going forward to the requirement for affidavits to be sworn or affirmed in accordance with the law. The Chief Commissioner of Victoria Police has taken specific action to ensure that in future Victoria Police members follow the correct procedures for the swearing or affirming of affidavits. The Bill will also make it an offence in future for a person to make a false or misleading statement about the swearing or affirming of an affidavit, with a penalty of up to 10 penalty units (around $1,220).

“The Victorian Coalition Government has decided to introduce this legislation after careful consideration of the serious potential consequences of not doing so,” Mr Clark said.

“If this legislation were not enacted, there would potentially be a heavy toll on victims of crime, community safety and our court system as a result of criminal proceedings being delayed, disrupted or unable to be determined on their merits solely because of procedural defects in the swearing or affirming of affidavits.”