Geoffrey Hancy - Barrister

Drafting a Statement

(The first version of this paper was presented on 11 September 2002 at an advocacy course conducted by the Supreme Court of Western Australia and Murdoch University)

A witness statement must contain truthful and reliable evidence, according to the clear recollection and personal experience of the witness. Its contents should tell the trial lawyer what the witness recalls, and do so in a way that can be translated into questions that extract from the witness in court admissible, honest, and reliable answers.

These objectives may be achieved if a number of rules are followed when the statement is prepared.

Tell the story as a series of events

A witness statement is a story told by the witness about a series of events that the witness experienced in the past. For the most part these events are:

  1. something the witness saw;
  2. what the witness did;
  3. a meeting or telephone conversation with someone and what the witness said or heard;
  4. a document that the witness prepared and sent off;
  5. a document the witness received, read and acted on.

Each event usually can be described in the words of the witness by reference to a time, place and the personal experience of the witness and the events follow in a time series. The components of each event are a time, a scene, and action.

Personal experience

Describe by reference to the sight, sound, and action

Each event is part of the witness’ personal experience. The description of the event should be what the witness saw, said, heard, or did. When another person forms part of the experience of the witness then the description of the event should refer to what that other was heard to say or seen to do.

A witness statement that is prepared in this way becomes a written version of what otherwise might be imagined to be a script for a film of the described events. If an event cannot be imagined as image or sound then it is likely that the witness statement is not in the correct form.

Recollection of events

In my view the witness should be told that the witness should only say in court what the witness recollects and knows to be true. That knowledge comes from recollection of personal experience of events. The witness should be confident about that recollection. The witness should not speculate or guess. If not confident about whether an event occurred then the true answer to a question about it may be that the witness does not know or does not remember.

If the witness is “pretty sure”, is “90% certain”, “thinks it is so”, says “I would have done”, says “it would have been”, says “I imagine” or prefaces a description of an event with a like expression then there is risk that what is being said is not true. In these cases the witness is not confidently saying what he or she knows to be true. Documents created at the relevant time or other objective evidence might be available to disprove the evidence. If this occurs at trial an adverse light might be cast on what the witness has said about other events.

Past events

Most evidence concerns events that occurred in the past. Witness statements should therefore use past and not present tense. The problem of incorrect use of present tense often arises when a witness describes a scene, or talks about a relationship between things, system, practice, or state of affairs.

Examples of incorrect use of present tense when past events are in issue include “The site is surrounded by trees …”, “Every worker who comes on site is given instructions to …”, “The company has standard terms of exclusion on its contract documents”, “Smith is managing director of the company and has authority to … “, “Orders for supplies are placed by …”.

Use of present tense disguises the true evidence about the state of affairs at the relevant time.

State the words spoken

Frequently witness statements set out conclusions about the nature or the subject of what was said rather than state the words used. This is not evidence. Usually it is a conclusion about or evaluation of personal experience that has not been set out in the statement. The specified substance of the words spoken constitutes the evidence.

Forms like “He talked about …”, “I informed her …”, “I related to him my concern about …”, “We discussed …’ do not set out what happened according to the personal experience of the witness. They tend to identify the label given by the witness to the topic or issue that was discussed without properly saying what was said. They cannot evoke an image of what happened. The safe form is “I said” or “he/she said” followed, as best as can be done, the substance of the words that were used. If topics of discussion are identified they should be followed, where relevant, by evidence of what was said.

Avoid lawyer speak

The language used in the statement should reflect the way people talk and not legalistic equivalents. People “see” rather than “observe” things. They “say” rather than “inform” or “advise”. They “read” and do not “peruse” and they “send”, “post” “fax” or “email” rather than “forward” documents. The witness “went” rather than “proceeded” somewhere. Most people drive “cars” rather than “vehicles” (although sometimes the best description is “vehicle”).

Use the active form

Most sentences should identify the actor (usually the witness) and if another person is involved should identify that person. The sentence should then say what the witness saw, said, heard or did. The actor may however be revealed by the context provided by the statement.

Avoid passive forms

Passive expressions that simply describe an event without identifying the individuals concerned should be avoided. For example “The side of the house was where the man came from” does not reveal anything about what the witness experienced. The sentence should reveal that the witness saw the man come from the side of the house. Unless it is clear from the context the form should be “I saw the man walk from the side of the house”.

Avoid “collective” expressions

The individual experience of the witness is usually relevant and not some form of collective or corporate experience. The witness should talk about what “I” saw, did, said or heard rather than what “we” or some corporate entity saw, did, said or heard.

Likewise where another individual said or did something the individual should be identified and not “they” or the name of some corporate or collective entity. Corporations do not talk or act. Only people do and hence they must be identified. A sentence that links conduct to a corporation is a conclusion about who the individual represented rather than a statement about what happened.

It is rarely helpful or admissible to state in a witness statement what “we agreed” or what “we discussed”. These are expressions of conclusions from words spoken that have not been stated.

Avoid stating the state of mind

In most cases the state of mind of the witness is not relevant. It may be relevant where an allegation is made that there was a common intention in a contractual context that was not correctly recorded in the final written contract and a claim is made for rectification. It might also be relevant in the context of foreseeability and the actual knowledge of the defendant when an allegation of negligence is made. In most cases however the state of mind of the witness is not relevant. It is not a description of the personal experience of the witness. It is not what the witness saw, said, did or heard.

There are numerous expressions that reveal an irrelevant state of mind and should not be included in witness statements. They include “I understood”, “I thought” or “I intended”.

Avoid interpreting documents

A related problem is interpretation of a document. In most cases what the words used in a document mean is an issue to be decided by the court. The author’s interpretation is not admissible. A sentence in the form “When I wrote this letter I meant in paragraph 2 …” is not likely to be admissible. The same applies to conversations. “When I said to her [words spoken] I meant …” and like forms should not be used. Again, interpretation usually is not a description of what the witness saw, said, heard or did.

Avoid repeating contents of documents

In most cases it is not necessary to repeat the contents of a document identified by the witness. It is sufficient for the witness to say that a document was prepared and what was done with it or that a document was received and read and then acted on and to describe the action. If the content of the document is admissible then the document should be and can be annexed as a potential exhibit. Sometimes a portion of the content of the document might be appropriately inserted in the witness statement if there is some good reason to do that; for example, to emphasise a particular point. Repetition of large slabs of document content should be avoided.


One sentence per paragraph

In my view it is better to have only one sentence per paragraph in a witness statement. This serves to remind counsel that there should be only one question on one piece of information at a time. It is common for solicitors to draft witness statements with numerous sentences per paragraph.

Number paragraphs

In cases where witness statements are exchanged paragraphs should be numbered.


The relevance of a document that is to be tendered through the witness should be explained by reference to the personal experience of the witness. Clearly identify a potential exhibit at the point where its relevance is explained in the statement.

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