The preparation of evidence for Court proceedings is a very important task. If there are no documents available, conversations are crucial to determining cases. Many cases turn upon the competing memories of witnesses in relation to conversations.
In NSW, the usual practice has been for solicitors to prepare evidence of conversations in direct speech, that is, the words are presented within quotation marks and sometimes with the warning “words to the following effect”. There is a longstanding practice of encouraging witnesses to turn their memories of conversations into direct speech for their written evidence. In NSW, this practice arose from a time when NSW Courts rejected evidence of a conversation that was not expressed in direct speech.
A recent decision of the Federal Court of Australia may change this usual and longstanding practice.
In Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381, Justice Jackman issued a caution about the use of direct speech in witness evidence. In that case, the lawyers for the applicant were based in NSW. The evidence of the conversations was prepared in direct speech. The respondent’s lawyers who were based in Victoria did not use direct speech, rather the form of evidence of conversations was given as evidence of memories of the substance or the gist of the conversations.
Justice Jackman highlighted in his judgment that there is no rule of law that evidence of conversations must be given in direct speech and where there is evidence of memories of the substance or gist of a conversation, it should only be given in direct speech if the witness can remember the actual words used.
His Honour then critsised the longstanding usual practice in NSW and issued a warning to lawyers to avoid this usual practice for the following reasons:
- It is logically wrong because “it reserves the logical process of deriving the meaning or substance of what was said from the actual words which were spoken, one cannot derive as distinct from guess act, the actual words spoken simply from the gist”;
- It is ethically wrong because “the evidence given as a result of that process conceals the true nature and quality of the witness’s memory, and conveys a false impression of that memory”; and
- It is grammatically wrong because “the use of quotation marks indicates as a matter of conventional usage that the relevant expression is a quotation of the exact words which were spoken.
His Honour suggested that courts will be prepared to draw adverse conclusions on credibility where a witness claims to remember the exact words of a conversation, but is found after cross examination to have exaggerated the nature and quality of their memory.
Justice Jackman set out 3 general principles which should be applied to the form of evidence of conversations:
- If the witness remembers only the gist or substance of what was said, and not the precise words, then the evidence should be given in indirect speech.
- If the witness claims to remember particular words or phrases being used, then those words or phrases should be put in quotation marks to indicate that they are verbatim quotations, even if the evidence is otherwise given in indirect speech.
- If the witness genuinely claims to recall the actual words in a conversation, then the evidence should be given in direct speech, that is quoting the words as actually spoken. Direct speech should not be prefaced with “in words to the following effect”. That expression blurs the distinction between verbatim memory and gist memory, and leaves the court unable to ascertain which kind of recollection is being claimed by the witness.
This is a Federal Court decision, and his Honour did not make any criticisms of the applicant’s lawyers as they were following usual practice. However, it can be considered as a caution to NSW lawyers in relation to evidence filed in cases in the future.
It appears likely that the issue will be raised before the NSW Supreme Court in the future, particularly given the singling out of the jurisdiction by Justice Jackman. It certainly will cause NSW litigators to modify their strategy in Federal Court proceedings.
Liability limited by a scheme approved under Professional Standards Legislation
https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca0381
