"Logically, ethically and grammatically wrong": Federal Court cautions use of direct speech in witness evidence

Since the mid-1990s, New South Wales solicitors have prepared evidence in chief of conversations in direct speech – that is, the words are presented within quote marks, sometimes with the caveat that these are “words to the following effect”. That may be about to change, with criticism of the practice coming from the Federal Court in Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381.

This issue primarily arose as a result of the lawyers of the applicant and the respondents respectively taking different approaches on the use of direct speech in evidence of conversations. The respondents' lawyers, who were based in Victoria and who had a different tradition in this regard, did not use quotation marks, with the form of the evidence of conversations being given as evidence of memories of the substance or the gist of conversations.

The judgment was delivered by Justice Jackman is insightful, and criticises the artificiality of the current practice. His Honour made the following points:

• There is no rule of the law in Australia 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.

No rule that evidence must be given in direct speech

In referring to a series of intermediate court decisions by the Federal Court, Queensland Court of Appeal and the New South Wales Supreme Court, Justice Jackman states that there is no rule that evidence of conversations must be given in direct speech. His Honour stresses that the primary duty of a witness is one of honesty: to tell the whole truth and nothing but the truth and direct speech to be used "only if the witness can remember the actual words used".

Should not work up a version of a conversation in direct speech

Justice Jackman expresses his reservations that he holds against "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’s actual memory merely of the substance or gist of what was said" despite acknowledging that it "may be regarded as usual practice in New South Wales."

His Honour blisteringly described the long-standing practice in New South Wales as being:

• 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";
• 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
• 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."

In providing such a critique, his Honour highlights the importance of the form of evidence of conversations reflecting "the difference between verbatim memory and gist memory". His Honour helpfully sets out the six following general principles which should be applied to the form of evidence of conversations:

• the form of the evidence should correspond to the witness' actual memory of the conversation;
• if a witness only remembers the gist or substance of what was said rather than exact words, then indirect speech should be used in a way that reflects the witness' actual memory only;
• if a witness remembers particular words or phrases, then quotation marks should be used to show they are verbatim, even if the rest of the evidence is in indirect speech;
• if witness genuinely claims to recall the actual words, then direct speech, quoting the words actually spoken, should be used. This may be applicable for instance if the witness has taken detailed notes of the conversation and has refreshed his or her memory from the notes;
• the phrase "in words to the following effect" should not be used to preface direct speech since it blurs the line between verbatim and gist memory; and
• a witness who claims to remember exact words, but who is later found after cross-examination, to have exaggerated the nature and quality of his or her memory, may suffer an adverse effect on his or her credibility.

Reception of witness' evidence by the Court

While Justice Jackman states that he has not drawn conclusions in favour of or adversely against either party based on their approach to evidence of conversations, where there is witness evidence of exact words used in direct speech, and this is later tested, this could risk the witness' credibility.

This is clear from Justice Jackman's questions posed to Mr Kane on whether his evidence of conversations in direct speech were the exact words used, where Mr Kane responded that:

• he was not "talking word for word",
• "it was more like the idea, what the conversation was about",
• he did not have a photographic memory, "far from it".

These responses, in addition to the conversations having occurred between five to nine years prior to the proceedings, Justice Jackman lays out the crux of the issue of using direct speech:

"It is impossible to ascertain from his evidence which words (if any) have been recalled by him as the exact words used in conversations some years ago, and which elements are the product of reconstruction. The appearance of a vivid memory of the conversation which is conveyed by the use of direct speech bears no resemblance to the state of Mr Kane's actual memory".