Justice Jackman of the Federal Court has recently provided useful guidance for preparing witness affidavits which contain evidence of conversations. In this case note, we discuss his Honour’s remarks in Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381.
When preparing witness affidavits deposing to a conversation, practitioners will routinely preface that evidence with their catchphrase of choice: “in words to the following effect”. The phrase protects a witness who cannot recall the precise words or phrases used in that conversation while still conveying the gist or substance of that conversation.
In Kane’s Hire, evidence in chief was led through witness affidavits. In Mr Kane’s affidavit, evidence of a conversation used direct speech and quotations – seemingly to convey that Mr Kane recalled the precise words or phrases used. Mr Kane acknowledged, in response to a clarifying query from Jackman J, that he was in fact only able to recall the “idea” of the conversation.
His Honour noted a concern that where direct speech is used, it is “impossible” to tell if a witness is recalling the exact words used in a conversation, or if parts of that evidence is the product of reconstruction.
An important takeaway from the remarks is that evidence of a conversation should be given in the form that reflects the differences between verbatim memory and gist memory. His Honour observed there is no rule of law requiring evidence of a conversation to be given in direct speech. Further, evidence should only be given in direct speech if the witness can remember the actual words used.
While in general terms, gist memory tends to be more stable over time than verbatim memory, particularly where conversations occurred years prior, it is possible for witnesses to recall the precise words or phrases used in a conversation.
His Honour derived six principles applicable to the form of evidence of conversations. These principles are distilled below:
The form of the evidence should correspond to the actual memory of the witness. Direct speech should not inherently be viewed as more reliable than indirect speech, or vice versa.
If a witness recalls only the gist or substance of a conversation, that evidence should be given in indirect speech, reflecting the actual memory.
Where evidence is given in indirect speech, if a witness remembers particular words or phrases, those words or phrases should be put in quotation marks to demonstrate they are recalled verbatim.
Where a witness claims to recall the actual words of a conversation, the evidence should be given in direct speech, quoting the words actually spoken. For example, a witness may recall the actual words used after refreshing their memory from a note written contemporaneously. If so, this fact should be stated in the affidavit and the note tendered.
Where direct speech is used, that evidence should not be preceded by “in words to the following effect”. By doing so, the distinction between verbatim memory and gist memory is blurred and the court may be unable to determine the type of recollection being claimed by the witness.
Where a witness claims to recall exact words or phrases and deposes to such, but under cross-examination is found to have exaggerated the nature and quality of their memory, that witness may suffer an adverse finding on their credibility.
On the facts before the Court in Kane’s Hire, no favourable or adverse conclusions were drawn on account of the form used to depose to conversations. His Honour’s view was that to do so would be “unfair” without first having given the parties fair warning of his reservations.
With these reservations now known, witnesses should ensure a court can readily understand the nature and effect their recollection.
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