A recent Federal Court of Australia decision has put a spotlight on the recording of conversations in witness statements. The decision in question was of Jackman J in Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381.
In a nutshell, his Honour criticised the NSW practice (obsession!) of evidence being given in direct speech, and noted the following principles (para [129]) about evidence of conversations.
- 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’s 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).
It was unclear about whether the notions would be picked up by State courts, but I note that the NSW Court of Appeal, in Gan v Xie [2023] NSWCA 163, delivered in July last year, talks about it. The court unanimously agreed with comments made by Jackson J, quoting from his decision, agreeing with the six points above and saying:
“The fact that precise words used, and the specific occasion on which words were used, are not recalled, does not mean that a person’s memory of the substance or “gist” of what was said must be rejected… It has been recognised for at least 90 years that memory is not a literal reproduction of the past (Schacter et al, ‘The Cognitive Neuroscience of Constructive Memory’ (1998) 49 Annual Review of Psychology 289 at 290). Because memory is constructive it is prone to errors. It is not merely on that account to be rejected…As Jackman J observed at [125] of Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd, the observations of McLelland CJ in Eq in Watson v Foxman are not a demand for unattainable perfection.”
There are lots of articles about the Kane decision, eg: https://www.bartier.com.au/insights/articles/is-your-affidavit-logically-ethically-and-grammatically-wrong
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