Evidence of conversations – the use of speech in affidavits

Summary

Recent judgments handed down in both the Federal Court of Australia and the New South Wales Court of Appeal have commented on the presentation of conversations in evidence. The decisions in either jurisdiction have presented somewhat conflicting views on the longstanding practice in New South Wales of using direct speech in an affidavit which is prefaced by a qualification such as the phrase ‘in words to the following effect’.

Although it is clear there is a need to distinguish ‘gist’ memory of witnesses from ‘verbatim’ memory and to ensure that a witness’s recollection of a conversation is accurately reflected in their affidavit evidence, it is not clear whether the current NSW practice achieves this.

In this article, we consider the impact of these recent key decisions and the takeaways which legal practitioners should note when drafting evidence of a conversation in an affidavit.

Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381

The Kane’s Hire case heard by Jackman J in the Federal Court involved evidence of conversations, occurring between 5 and 9 years prior, given by both the applicant and respondent who took different approaches from one another.

The applicant, Mr Kane, gave evidence of the conversations in direct speech, where the respondent used indirect speech. When pressed on his recollection of the conversations, Mr Kane admitted that he could not remember the conversation word for word and that his evidence ‘was more like the idea, what the conversation was about’.

Justice Jackman took this opportunity to comment upon the longstanding practice in NSW, whereby legal practitioners present gist memory in the form of verbatim memory in affidavit evidence by prefacing direct speech with the phrase ‘in words to the following effect’, or something of the like. His Honour said that this practice is ‘logically, ethically and grammatically wrong’, primarily because evidence given in this way does not reflect the actual recollection of the witness.

His Honour set out the following six principles to guide the form of evidence of conversations:

• Whether the evidence is given in direct or indirect speech should reflect the actual memory the witness has of the conversation. Importantly, it is not correct to say that direct speech is more reliable than indirect speech;
• Where the witness only remembers the gist of the conversation, the evidence should be given in indirect speech;
• Quotation marks should be used where a witness remembers particular words or phrases (irrespective of whether the rest of the conversation is recorded in indirect speech);
• If a witness claims to remember the actual word exchanged in conversation, the evidence should be given in direct speech. Where a contemporaneous note is used to refresh the witness’s memory, this should be stated and the note should be tendered;
• Evidence given in direct speech should not be prefaced by the phrase ‘in words to the following effect’; and
• Where a witness claims to remember a conversation verbatim, but is later found (in cross-examination) to have exaggerated the nature or extent of their memory, it maty reflect adversely on their credibility.

In this case, the applicant was not penalised for the evidence given by Mr Kane because His Honour considered it would be unfair to penalise either the witness or the legal practitioners who were simply following common practice in NSW. However, this case gives clear warning to legal practitioners to be precise in the language used when evidencing conversations in affidavits.

The implications of this judgment are seen in the later decision of Chu v Lin[1], in which Jackman J made a finding adverse to a witness’ credibility because the witness had purported to give evidence in direct speech of conversations occurring a decade prior. This was not remedied by the qualification which prefaced the evidence. Jackman J considered that, as at least a year had passed since Kane’s Hire was published, adequate warning had been given on the point and has again reaffirmed his earlier comments in the recent judgment of Punchbowl Casual Dining Pty Ltd v Rashays Cafes & Restaurants Pty Ltd[2], rejecting the NSW Court of Appeal’s observations in Wild v Meduri, set out below.

Gan v Xie [2023] NSWCA 163

In their decision handed down on 17 July 2023, the NSW Court of Appeal (White JA, Simpson and Basten AJJA), cited Justice Jackman’s comments in Kane’s Hire with approval when it overturned the primary judge’s decision to reject evidence given by a witness on the basis that the specific words used in the conversation were not recalled.

This decision confirms that a person’s memory of the substance of a conversation, which is evidenced in an affidavit in indirect speech, should not be rejected and that it is not necessary that the witness have specific recollection of particular words in order for evidence of that conversation to be admissible. The decision confirmed that any objection to evidence given in indirect speech, of the gist of what was said in a conversation, is inadmissible as opinion evidence is met by section 78 of the Evidence Act 1995 (NSW), which makes an exception to the opinion rule for lay opinions.

Wild v Meduri [2024] NSWCA 230

The NSW Court of Appeal (Bell CJ and White and Kirk JJA), subsequently considered Justice Jackman’s comments in Kane’s Hire on the point. There was division amongst the judges as to whether His Honour’s approach was correct.

Expressing disagreement with the Federal Court decisions, Bell CJ stated that it was acceptable for a witness to provide evidence of a conversation in direct speech with some sort of qualification which makes clear that the witness is drawing on their memory of the substance of the conversation rather than the specific words. Bell CJ said that ‘the prefatory phrase also makes it perfectly plain to the tribunal of fact that the witness is not purporting to recall the exact words used’ and that the impugned practice is a ‘useful discipline’. Bell CJ went on to say that it was ‘unorthodox and undesirable’ for a single judge to unilaterally purport to end a longstanding practice in respect of drafting evidence. Kirk JJA concurred with Bell CJ.

Contrarily, White JA expressed agreement with Justice Jackman’s findings in the Federal Court and in particular stated that the practice of using the expression ‘words to the following effect’ carries the risk of concealing the true nature and quality of the witness’ memory and conveying a false impression of that memory.

Implications

Although the Federal Court and NSW Court of Appeal have taken different views on whether direct speech prefaced by a qualification is accurate and credible, there does seem to be consensus that indirect speech is a credible and, possibly, compelling way of presenting evidence of a conversation.

Where a witness uses direct speech and is cross-examined on their evidence, there is a risk of an adverse finding as to credibility where the witness is found to not, in fact, recall the exact words used in a conversation.

It is clear that legal practitioners should aim to present evidence of a conversation in as much detail as possible in a way that accurately reflects the witnesses memory as being either gist or verbatim.

 

[1] [2024] FCA 766.

[2] (Trial Judgment) [2024] FCA 1265