21. Sworn evidence of witnesses to be on oath or affirmation

21. Sworn evidence of witnesses to be on oath or affirmation

(1) A witness in a proceeding must either take an oath, or make an
affirmation, before giving evidence.

(2) Subsection (1) does not apply to a person who gives unsworn evidence under section 13.

(3) A person who is called merely to produce a document or thing to the court need not take an oath or make an affirmation before doing so.

(4) The witness is to take the oath, or make the affirmation, in accordance
with the appropriate form in Schedule 1 or in a similar form.

(5) Such an affirmation has the same effect for all purposes as an oath

Buggy v Reinisch [2010] FCA 917 involved a dispute about an agreement to buy a boat. In the course of proceedings, the Second Respondent claimed to never have seen a particular document when it was shown to him in the witness box.

Flick J [at 68] recounted a very effective exchange in cross-examination, then his conclusions:

[The respondent's] attempt to explain why he had never seen a document by reason of it being sent to the “wrong fax number”, only for it to emerge that the number to which the document was sent was a number previously used by [the respondent] – and possibly used in 2004 – is not the hallmark of a witness telling “the truth, the whole truth and nothing but the truth”.

69. That, of course, is part of the oath now set forth in the Schedule to the Evidence Act 1995 (Cth) and part of the oath in fact taken by [the respondent]. The oath itself has been traced back to at least 1649: Mellinkoff, The Language of the Law (1963) at 172. An oath to “tell the truth”, it has also been pointed out long ago, was not always regarded as an oath to tell “the whole truth”: Silving, ‘The Oath’ (1959) 68 Yale L J 1329 at 1346 and 1527 to 1577. It should constantly be recalled that the requirement that an oath or affirmation be administered, as contemplated by s 44(1) of the Federal Court of Australia Act 1976 (Cth) and by s 21 of the Evidence Act 1995 (Cth), is not merely a procedural step which is but a precursor to a witness thereafter answering such questions as may be asked in such a manner as the witness may see fit. An oath or an affirmation is (in part) a solemn reminder to any witness of the serious obligation imposed to give a truthful account. The evidence given by a witness is central to the administration of justice.

70. In the absence of explanation, some of the answers given by [the respondent] may perhaps be the hallmark of a witness determined to tell far less than the “whole truth” and only so much of the truth as assisted his case. The “whole truth” as to the fax number, however, did finally emerge.