How to prepare evidence of conversations for a trial
In NSW there is a longstanding practice, when preparing evidence to be used in a trial, to either compel or encourage witnesses to turn their memories of conversations into direct speech to be set out in a statement or affidavit which is tendered in a case.
Preparing evidence in direct speech format can be artificial at times, particularly when witnesses are asked to recall the words used in conversations many years ago, and they have a recollection of what was spoken about rather than what was actually said.
A witness is more likely to recall the gist of a conversation rather than the exact words used, and swearing an affidavit using direct speech based on a reconstruction will have its difficulties when a Judge determines the weight that should be given to the evidence.
Evidence must be presented in a way that deals with the recollection rather than some artificial reconstruction of a memory to come up with a form of direct speech.
However, an actual recollection of the direct speech used in conversations should be identified in an affidavit where a witness has an actual recollection of the words spoken.
Lawyers in NSW have developed a practice of using terms such as “to the best of my recollection” or “said words to the following effect” to limit criticism of and attacks during cross examination of a witness over their recollection of the actual words spoken in a conversation.
This longstanding NSW practice was recently criticised by Jackman J in the case of Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd.
In this Federal Court case involving NSW lawyers acting for one party and Victorian lawyers acting for the other, the parties adopted a different approach to the way in which evidence of conversations was set out in affidavits.
The NSW lawyers prepared evidence in the form of affidavits using direct speech with a rider that, during conversations, “words were said to the effect of” those words set out in the affidavit.
However, the Victorian lawyers did not use direct speech when preparing their affidavits containing evidence of conversations. Rather, they set out the memories of the gist or substance of the conversations.
Jackman J observed:
“The practice of witnesses and lawyers working up a version of a conversation in direct speech (whether or not prefaced by the phrase “in words to the following effect”) from the witness’ actual memory merely of the substance or gist of what was said is logically, ethically and grammatically wrong. It is logically wrong because it reverses 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 at) the actual words spoken simply from their gist. It is ethically wrong because the evidence given as a result of that process conceals the true nature and quality of the witness’ memory, and conveys a false impression of that memory. 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. It could not be said that this practice is allied to an iron sense of principle. The form in which evidence of conversations is given should reflect the difference between verbatim memory and gist memory. While in general terms gist memory tends to be more stable and durable over time than verbatim memory, possibly because it has engaged with higher reasoning processes which interpret and give meaning to what has been heard superficially, it will often be the case that certain words or phrases can actually be remembered verbatim. It would appear that verbatim memory and gist memory of conversations are not merely different in degree, but are also different in kind.”
There is no rule of law of evidence in Australia that evidence must be given in direct speech.
Jackman J in his judgment set out six general principles that apply to the form of evidence of conversations and they are as follows:
- “The form of the evidence should correspond to the nature of the actual memory the witness has of the conversation…There is no reason in the abstract to think that evidence in direct speech is more reliable or credible than evidence in indirect speech, or vice versa.
- 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 (also known as reported speech), in terms which reflect the witness’ actual memory.
- 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 used in a conversation, then the evidence should be given in direct speech; that is, quoting the words as actually spoken…Apart from rare cases of photographic memory, this may well be the case where the witness has made a detailed contemporaneous note of the conversation, and has refreshed his or her memory from the note (in which case this should be expressly stated along with the tender of the note).
- Evidence given in direct speech should not be prefaced by the phrase that the conversation occurred “in words to the following effect”. That expression blurs the important distinction between verbatim memory and gist memory, and leaves the Court unable to ascertain which kind of recollection is being claimed by the witness.
- Evidence of a witness who claims to remember the exact words of a conversation, but who is found after cross-examination to have exaggerated the nature and quality of his or her memory, may well suffer an adverse effect on his or her credibility (the weight of which will depend on all the circumstances). However, the inability to cross- examine in that manner a witness who gives evidence in indirect speech is not unfairly prejudicial within the meaning of s 135 of the Evidence Act 1995.”
Whilst the way the evidence was prepared in this case did not affect the ultimate outcome the case serves as a salient reminder to all lawyers in NSW of the way evidence of conversations should be prepared to ensure that the evidence is given the weight it deserves and witnesses are not exposed to cross examination testing recollections which can result in Judges drawing adverse conclusions about the recollection of a witness.