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AFFIDAVITS: basic concepts

AFFIDAVITS: basic concepts. 2019 Certificate in Forensic Investigation Techniques, Friday 30 August 2019. CONTENTS. Purpose of an affidavit/statement - a source of evidence Difference between an affidavit and a statement Procedure for taking an affidavit /statement

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AFFIDAVITS: basic concepts

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  1. AFFIDAVITS: basic concepts 2019 Certificate in Forensic Investigation Techniques, Friday 30 August 2019

  2. CONTENTS • Purpose of an affidavit/statement - a source of evidence • Difference between an affidavit and a statement • Procedure for taking an affidavit /statement • Drafting an affidavit /statement • Content and • Structure

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  4. Part 1:INTRODUCTION TO STATEMENTS AND affidavitS

  5. PURPOSE OF AFFIDAVIT/STATEMENT - SOURCE OF EVIDENCE 4. Decision of and Sentence imposed by Court FORENSIC INVESTIGATION REPORT DEPT OF HEALTH JAN 2019 REF 123/2015 2. Decision to Prosecute 3. Court Proceedings 1. Investigation

  6. PURPOSE OF AFFIDAVIT/STATEMENT - SOURCE OF EVIDENCE • In looking at the criminal justice process we can identify 4 major stages, namely: • The investigation phase - conducted by the commercial forensic investigator in association with the SAPS – • NOTE always remember the commercial forensic investigator does not dictate the investigation but acts as a support to the Investigating Officer. • During this phase the Investigating Officer, who may be assisted by the Commercial Forensic Investigator is responsible to: • gather and secure the evidence of the commission of the alleged offence – referred to as exhibits, • interview witnesses and suspects and obtain their affidavits or statements • Compile a forensic report or assist the private commercial forensic investigator to receive the information required for the report. • It is essential that all the processes followed during the investigation phase were in accordance with the legislative prescripts and met the evidential burden of the court.

  7. PURPOSE OF AFFIDAVIT/STATEMENT - SOURCE OF EVIDENCE • The decision to prosecute – once the Investigating Officer is satisfied there is sufficient prima facie evidence the docket is referred to the National Prosecuting Authority for decision as to whether the available evidence warrants instituting court proceedings against the suspect. The NPA may withhold making a decision and direct the Investigating Officer/commercial forensic investigator to undertake further investigation • The manner in which the commercial crime matters referred to the Specialised Commercial Crimes Court is slightly different in that these are prosecution- led investigations and the prosecutor is involved in directing the police investigation from virtually the beginning of the investigation.

  8. PURPOSE OF AFFIDAVIT/STATEMENT - SOURCE OF EVIDENCE • The Court Proceedings – where the evidence available is adduced to the court by way of the oral testimony of the witness and the handing in of the supporting exhibits and the forensic report. • The affidavit or statement is made available to the defence prior to the hearing and thereafter used in the court proceedings by the prosecutor as a basis for the leading of the evidence in chief and the referred to by the defence counsel when cross examining the witness. The affidavit itself is not usually handed in as an exhibit. • At all times while we are engaged in the court proceedings the burden of proof (beyond reasonable doubt in criminal matters) must be borne in mind. • Decision reached by the Court as to whether the evidence provided by the witnesses was credible and discharged the burden of proof to enable the Court to arrive at a guilty verdict and impose an appropriate sentence.

  9. PURPOSE OF AFFIDAVIT/STATEMENT - SOURCE OF EVIDENCE Enables an accurate, detailed and orderly description of what transpired concerning commission of alleged offence Contents to be based on personal knowledge of Deponent – what he observed or experienced May include some information and belief (feels I can say is true although not based on personal knowledge) Generally try to avoid hearsay evidence Content of affidavit is untested evidence and in our type proceedings is not accepted by court without oral evidence of deponent. Exception: statement of bank official in terms of Section 236 of Criminal Procedure Act Affidavit of other experts may be handed in by consent of parties – e.g. hand writing expert and affidavit attached to forensic report REMEMBER exhibits cannot walk into court alone They are carried by witness who testifies to their origins and content

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  11. DIFFERENCE BETWEEN AN AFFIDAVIT AND A STATEMENT STATEMENT • Statement of fact • Made voluntarily – no threat or promise of reward • Obtained from witnesses – but will not certify as to validity and if lied no further sanction arises. • Obtained from Suspect. • As lay persons not required to warn possible suspect of rights, but should inform of nature of interview, allegations against him and provide him with option to continue. • Where criminal proceedings intended – let IO obtain statement from Suspect

  12. DIFFERENCE BETWEEN AN AFFIDAVIT AND A STATEMENT AFFIDAVIT • Swornstatement of fact that confirms validity of contents • Sworn, affirmed or declared before person authorised by law to do so, known as a Commissioner of Oaths appointed in terms of the Justice of the Peace and Commissioner of Oaths Act, No 16 of 1963 • Made voluntarily – enforced by Section 7 prohibits C of O from administering oath is reason to believe not done voluntarily • Usual format for all witness statements • Section 9 – offence for person to make false statement knowing it to be false – liable upon conviction to same penalties prescribed by law for perjury.

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  14. PROCEDURE FOR TAKING AN AFFIDAVIT /STATEMENT • No predetermined age limit. • Deponent must be capable of understanding the facts and significance of the oath – question of mental capability. • Deponent must confirm he is willing to make the affidavit and depose to it by way of an oath or affirmation. If not take a statement, otherwise interview and record notes. • Ascertain at outset whether deponent is conversant in English or will require the services of an interpreter

  15. PROCEDURE FOR TAKING AN AFFIDAVIT /STATEMENT • Ensure a competent interpreter is present during the interview of the deponent or use an investigator who is fluent in the language of choice to conduct the interview of the deponent and to interpret the affidavit • If witness to testify to documentary exhibits have copies available during interview and describe exhibit in detail in affidavit • Be sensitive to physical and emotional needs of witness - privacy, no interruptions, allow for body breaks and protect confidentiality

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  17. DRAFTING AN AFFIDAVIT/STATEMENT 1. Start with a goal in mind, namely: The allegations relate to xxx offence The witness can testify to xxx and xxx elements covering xxxx aspects of the suspected transactions 2. During interview constantly assess what you already know against what witness is saying and test veracity of witness through repeated questioning of disputed and other aspects 3. Determine gaps in evidence on hand and who will testify to cover them so that Court has completed picture e.g. allegation of theft and information suspect gave her ex husband cash from stolen funds to stay at home to look after children – confirmation required re funds and possible knowledge of source

  18. CONTENT What Where When Who Correct Objective AFFIDAVIT The tale of 4 Whiskies and a Hotel How Complete Clear Relevant Drafting

  19. CONTENT • Content of affidavit obtained from witness during • formal interview process • Interview allows for asking of probing questions to obtain answers required. • Be non-threatening and non judgemental in approach – unless you uncover contradictions and deliberate red herrings • Test the ability of witness to recount detail and relate events even under cross examination • If time allows, or matter is complex that requires detailed statement you may interview witness, which is recorded manually or electronically, draft affidavit and meet with witness to confirm correctness and sign. Retain interview notes in working papers

  20. CONTENT • Content should be: • detailed, but relevant to elements of offence (fraud =dishonesty and concealment) • Logically ordered setting out the story of the witness • Paragraphs must flow from one to the other • Avoid grammar mistakes and language not used by witness normally • Reference to be made to exhibits (Hard and electronic format) relevant to story

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  22. STRUCTURE • As far as possible endeavour to type the affidavit • Write in the first person – use I and we • Number each paragraph with the number in the middle of the page • Leave space (1.5) between each paragraph • Use 1.5 or 2 line spacing in body of paragraphs • Allow for wide margins on both sides • Include the name of the deponent as a header on each page

  23. STRUCTURE • Deponent and Commissioner of Oaths to initial each page and any manual alterations to the affidavit. • Both to sign in full in spaces provided at the end of the affidavit • If affidavit written in longhand and requires an alteration the incorrect section to have a line drawn through it and the amendment inserted above. • Both parties to initial the amendment.

  24. STRUCTURE • The purpose of numbering each paragraph and sub-paragraph as indicated above is to allow for cross referencing within the affidavit, facilitates the referral to a specific section within the affidavit when commenting on the evidence of the deponent in the forensic report and assists the court officials in referring the witness to the specific section in the affidavit that may have been contravened during the oral testimony given at the proceedings.

  25. STRUCTURE – Layout and content of the opening paragraphs FULL NAME OF THE DEPONENT STATES IN ENGLISH UNDER OATH/AFFIRMS/ STATES IN ENGLISH (STATEMENT) 1. I am an adult GENDER with Identity Number XX residing at XXX. I am employed by XX, based at XX, Landline XX cell XX. My email address is XX 2. Details of deponent’s academic qualifications, employment details, work experience and context in so far as they relate to his involvement in or knowledge of the alleged offence . 3. The contents of this affidavit are both true and correct, and save where the context indicates otherwise, within my personal knowledge and belief. 4. Details of the relationship of the deponent with the complainant, his company or the suspects.

  26. STRUCTURE – Layout and content of the paragraphs – body 5.- 9. Set out the information known to deponent that relates to elements to be proven 10. - 14. Refer to the relevant exhibits drafted or seen by witness as involving suspect 15. Mention relationship between witness and suspect and confirm if any motive driving witness to make statement against suspect. REMEMBER DETAIL DETAILDETAIL EVEN IF EVIDENCE IS AGAINST YOUR VERSION MAY INCLUDE AS IS DISCLOSED UPFRONT AND GIVES FOREWARNING TO PROSECUTOR OF PROBLEMS THAT MAY BE SEIZED UPON DURING CROSS EXAMINATION

  27. STRUCTURE - Numbering and Headers EXAMPLE OF NUMBERING OF PARAGRAPHS AND SUB PARAGRAPHS 5. . The system allowed for the capturing of the: 5.1. xxxxxx 5.2. xxxxxxxx 5.2.1. XXXXX 5.2.2.XXXXXXX a. xxxxx b. xxxxx c. xxxxxx. i. xxxxxx ii. xxxxx NUMBER EACH PAGE AT THE BOTTOM INCLUDE THE SURNAME AND INITIALS OF THE DEPONENT AS A HEADER ON EACH PAGE..

  28. STRUCTURE – final paragraphs and oath 16. I make this affidavit out of my own free will and have not been promised any reward, monetary or otherwise, for deposing to the affidavit. 17. The body of the affidavit consists of 5 pages and I have initialled each page. I have read this affidavit before I signed it. I did not require the services of an interpreter . 18. I know and understand the contents of this affidavit. I have no objection to taking the prescribed oath. I consider the prescribed oath to be binding on my conscience. I swear that the contents of this affidavit are true, so help me God. ________________________________ SIGNATURE OF DEPONENT

  29. STRUCTURE - Certificate of the Commissioner of Oaths I certify that the above affidavit was taken by me; that the DEPONENT has acknowledged that he knows and understands the contents of this affidavit, that he does not have any objection to taking the oath, and that he considers it to be binding on his conscience. This affidavit was sworn to before me and the Deponent’s signature was placed hereon in my presence at _______________________ on this the ____ day of _______________ 2019 at _____:_____, and that the administering oath complied with the regulations contained in Government Gazette No. R 1258 of 21 July 1972, as amended. __________________________ Commissioner of Oaths Full Names Designation Address

  30. STRUCTURE - Certificate of the Commissioner of Oaths NB – 1. If the deponent was unable to read the affidavit the wording would be changed to “I did not read the contents of the affidavit but they were read to me by xxxxx INSERT FULL NAME of the reader. 2. If the services of an interpreter were utilised the wording would read “I required the services of an interpreter”. Following the signature of the deponent, insert the following: I, INSERT FULL NAMES confirm I acted as an interpreter, interpreting the contents of the affidavit from English into xxx and vice versa” –SIGNATURE OF THE INTERPRETER

  31. STRUCTURE - Certificate of the Commissioner of Oaths NB – 3. If the deponent objects to the taking of the oath the wording should read I have objection to taking the prescribed oath and delete the sentence that the oath is considered binding and the words “so help me God” and insert “I affirm the contents of this affidavit are true”. The certificate of the Commissioner of Oaths is also amended to delete the reference to the oath and replace with the affirming of the contents as the truth.

  32. STRUCTURE - Certificate of the Commissioner of Oaths NB – 4. The pro forma affidavit used in the SA Police does not include the oath (the words in italics) and furthermore very few police officers administer the oath correctly. To avoid any discrepancies regarding the correct administration of the oath, it is written in the affidavit.

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  34. Part 2:how to take an affidavit?

  35. INTRODUCTION • What is an Affidavit? • What is a Statement? • Is there a Difference? • The major difference between a witness statement and an affidavit is that a witness statement is not sworn by its maker, rather it is simply signed. As such, a witness statement cannot simply be read as evidence in Court as an affidavit would be. • What are Affidavits and Statements used for? • Who can Take a Statement? • Who can Take an Affidavit? • Why are Statements and Affidavits Important?

  36. FORMAT REQUIREMETS • Written in English • First Person Past Tense • Written in Paragraphs • Each Paragraph Numbered • Number to be in Middle of Page

  37. FORMAT REQUIREMETS • No spaces Left Open Between Paragraphs • Narrative to be in Historical Sequence • Legible Handwriting or Typewritten • Advantages / Disadvantages • Black Ink

  38. PREPARATION • Importance of Proper Preparation - Purpose Defined - Information - Interview Notes - Interview Location - Witness – determine competence - Complainant vs Witness - Attitude / Interaction

  39. GETTTING STARTED • Put Witness at Ease • Rapport • Explain Reason for Taking Affidavit • Ask Witness If he / she has Objection to Taking Oath – explain options and implications • Answer any questions from witness

  40. THE PREAMBLE : • Title of Witness • Full First and Last Names • States in English Under Oath OR Solemnly Declares • FIRST PARAGRAPH: - Witness to State Majority, Race, First Language, Gender and nick name - Identity Number, Date of Birth and Age.

  41. PREAMBLE : FIRST PARAGRAPH • HOME ADDRESS: - Full Physical Street Address and Home Telephone Number / Cell Phone - Full Particulars and Contact Particulars of Next-of-Kin not Staying at Same Address – for Tracing Purposes

  42. PREAMBLE : FIRST PARAGRAPH • BUSINESS / WORK ADDRESS: - State Position / Rank of Witness - Full Name of Company / Business in whose Employ the Witness is with PERSAL number - Full Physical Street Address and Office Number - Office Telephone, Fax and E-Mail Particulars

  43. PREAMBLE : PARAGRAPH TWO:(OFFICIAL CAPACITY) • DUTIES OF WITNESS - Set out the Duties / Responsibilities and Powers of the Witness if Statement is made in an Official Capacity - Describe the witness’ role in the organization

  44. PREAMBLE : PARAGRAPH THREE • ROLE PLAYERS * - Identify and Describe Role Players – These may be other Witnesses from whom Statements will have to be Obtained during the course of the Investigation or a Suspect / Defendant in an internal matter - The Connection to the Current Investigation to be Fully Explained * If Involved

  45. BODY : PARAGRAPH THREE: (OFFICIAL CAPACITY) • BACKGROUND - Start with day, date and time - State that Witness was on Duty - State place where and what the Duties were the Witness was busy with - Set out fully what Happened; Identify persons involved and describe events - Describe the witness’ actions

  46. BODY : PARAGRAPH FOUR • EVENTS - Describe the Events fully, Setting out who did what and what the Witness did - If the Witness Refers to Documentary evidence, it must be Described and Attached to the Statement as an Annexure and - must be marked Alphabetically, Relevance explained

  47. BODY : PARAGRAPH FIVE • ANNEXURES - Seize originals of documents - Make copies of documents - Use Copies as Annexures - Copies to be marked Alphabetically on Top Right Hand Corner

  48. BODY : PARAGRAPH SIX • FURTHER EVENTS - Describe Further Events - If Witness was the Victim of a Criminal Act, it Should be Described in Detail - Witness should Describe the Result of the act and say whether or not s/he gave Permission for the act and what the Negative result was

  49. BODY : PARAGRAPH SEVEN • ILLEGALITY - If the act was Illegal, Witness must say why and that Perpetrator had no Permission to act in that fashion - Witness must say what he / she would have done if the true facts were known - The Witness now reads the Statement and any Changes that are made are Initialled

  50. CONCLUSION : PARAGRAPH EIGHT • CERTIFICATE ONE - Witness must state that s / he is aware of the contents of the declaration; - That s / he has (or has no) objection to taking the Prescribed Oath; - That s / he considers the Prescribed Oath to be Binding (or not binding) on his / her conscience

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