The Unrequested Affidavit Correction
You are a barrister briefed to appear for the defendant, Meridian Haulage Pty Ltd, in a two-day negligence trial. The plaintiff alleges a shoulder injury from a forklift incident. On the morning of day two, your instructing solicitor, Kate, forwards you a signed affidavit sworn by a Meridian warehouse supervisor, Mr Okafor. Kate writes: 'Mr Okafor now says the forklift had a faulty horn that he reported three weeks before the incident. He left that out of his first statement. I've typed this up and he signed it last night.' The affidavit is dated the previous day but the trial began two days ago. The plaintiff's counsel has already closed her case. You know the horn issue could materially shift apportionment. Meridian's managing director has told Kate he wants the affidavit tendered 'as soon as possible, before the judge makes up his mind'. Kate asks you to lead Mr Okafor through the affidavit this afternoon.
1. Identify the ethical issues raised by the timing and provenance of Mr Okafor's affidavit, and explain what you must do before deciding whether to call him.
Read the worked answer
The central issue is whether tendering this affidavit would mislead the court or abuse the trial process, contrary to your paramount duty to the court and the administration of justice.
Provenance and timing. The affidavit was signed after the trial began and after the plaintiff closed her case. Kate's email suggests she drafted it from a conversation and Mr Okafor signed it the same night. That raises questions about whether it is genuinely his evidence or a document shaped by the legal team to fit a forensic need. The date on the face of the affidavit must be accurate; backdating or obscuring when it was created is itself misleading.
Late emergence. You need to understand why the horn report was omitted from the first statement. Possibilities range from innocent oversight to deliberate concealment. If the omission was deliberate, or if the supervisor was pressured, the evidence may be tainted.
Before deciding, you must:
- Speak to Mr Okafor directly, without Kate present, to confirm the content is his own recollection and that no one told him what to say.
- Ask Kate why the affidavit was prepared when it was and who initiated it.
- Consider whether the late evidence can be fairly met by the plaintiff, and whether an adjournment or leave application is required.
- Advise the client that the court will scrutinise the timing and that concealment would be far worse than an adverse finding on apportionment.
You cannot simply tender the document because the client wants it before the judge 'makes up his mind'.
2. Assume you conclude the evidence is genuine but very late. Outline how you should proceed, including your obligations to the court and to the opposing party.
Read the worked answer
If the evidence is genuine, the duty is to put it before the court candidly, with full disclosure of its lateness, and to ensure the plaintiff is not ambushed.
Seek leave openly. You should not attempt to slip the affidavit in during re-examination or closing. You must inform the court that the evidence is fresh, explain when it emerged, and apply for leave to reopen the defendant's case or to call the witness. The application should be made in open court with the plaintiff present.
Disclose the circumstances. The court is entitled to know that the affidavit was signed during trial and why the earlier statement omitted the horn issue. Any suggestion that the omission was tactical must be addressed honestly, not buried.
Offer a fair opportunity to respond. You should not oppose a reasonable adjournment so the plaintiff can investigate the horn report, obtain records, or recall witnesses. Opposing an adjournment to gain tactical advantage from the plaintiff's inability to respond would be unfair.
Do not overstate the evidence. In leading Mr Okafor, you must not put words in his mouth or gloss over inconsistencies between his two accounts. The weaknesses should be elicited, not minimised.
Advise the client. Meridian should understand that pressing for the evidence to be rushed in, or resisting any opportunity for the plaintiff to respond, risks a costs order, a credibility finding, or worse. Your duty to the court overrides the client's wish for speed.