When a witness is giving evidence in civil proceedings, this is usually done in the form of an affidavit. General longstanding practice in NSW when preparing an affidavit is that evidence of conversations was usually given in the form of direct speech, much like a transcript. This was to prevent the evidence of that conversation being inadmissible.
As most witnesses rarely recall exactly the precise words that were spoken, when giving evidence in direct speech, the witness would usually qualify the evidence by deposing that the conversation the witness had with the person was “with words to the effect:”.
Recent decisions in the Federal Court of Australia and New South Wales Court of Appeal have significantly changed that way that evidence of a witness’s recollection of a conversations is set out in affidavit evidence.
The Federal Court decision
Earlier this year, in the decision of Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd  FCA 381 (Kane) His Honour Justice Jackson was critical of the way that conversations are recalled in evidence given in New South Wales.
The decision criticised the usual practice in New South Wales as being flawed for the following reasons:
- 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;
- 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 works which were spoken. It could not be said that this practice is allied to an iron sense of principal.
The NSW Supreme Court decisions
The observations of Justice Jackson in Kane were addressed directly by the New South Wales Court of Appeal in May 2023 when the full Court of Appeal (comprising of Justice White, Justice Simpson and Justice Basten) handed down its decision in the matter Gan v Xie  NSWCA 163 (Gan).
At paragraph 118 of this decision, the Court referred to Justice Jackman’s observations in the following manner:
“The fact that precise words used and the specific occasions on which words were used and not recalled does not mean a person’s memory of the substance or “gist” of what was said must be rejected. I agree with the observations of Jackman J in Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd  FCA 381 at  to .”
Further, in Salmon v Albarran  NSWSC 238, Justice Nixon treated evidence given by a witness who had provided multiple accounts of conversations that occurred over 17 years ago in the conventional matter of recounting words to the effect, not as evidence of what was spoken but as her recollection of the gist of the conversation. In doing so, His Honour referred to the remarks of White JA in Gan, citing Kane.
How should witnesses give evidence in affidavits in light of the Kane and Gan decisions?
The paragraphs 123 to 128 of the Kane decision provide the following useful guide to witnesses (and lawyers) when preparing affidavit evidence of oral conversations. In particular, paragraph 129 sets out general principles that apply:
- The discretion to use direct or indirect speech is dependent on the witness’ recollection of the conversations. If the witness has an exact memory of the conversation or words used, they should use direct speech in affidavit evidence. If the witness only remembers the gist of the conversation, indirect speech should be used.
- There is no reason to think that evidence in direct speech is more reliable or credible than evidence in direct speech, or vias versa.
- If the witness claims to remember particular words or phrases, those words or phrases should be put in quotation marks. If they recall the actual words in the conversation, those words should also be placed in quotation marks.
- If a witness has refreshed their memory of a conversation from a contemporaneous note, this should be expressed in the affidavit and the note tendered.
- Evidence given in direct speech should not be prefaced with “words to the following effect”.
- The credibility of a particular witness may be negatively affected if it is revealed in cross-examination that they have exaggerated the nature and quality of their memory.
These principles are helpful for anybody preparing an affidavit or giving evidence of conversations moving forward in NSW Court proceedings.
In practice, most (if not all) witnesses find it difficult to remember the exact words of a conversation that happened a few days ago and let alone several years ago. Sometimes they can only recall the gist of what was said, or some specific words that were used, but rarely the entire exchange of words that took place. The new decisions provide a helpful guideline and will, in our view, make it easier for witnesses to give evidence based on their actual recollection, without the fear that less weight will be given if evidence is not given in direct speech.
If you would like to discuss this matter further, or if you require any legal assistance involving a matter in Court or Tribunal, please do not hesitate to contact our highly experienced and specialized Commercial Litigation lawyers at Madison Marcus to see how we can assist you further.
Authors: Daniel Ivers / Cristian Fuenzalida