Don’t quote me… New South Wales Court of Appeal weighs in on use of direct speech in affidavit evidence

Further to the recent comments made by the Federal Court on the use of direct speech in affidavit evidence, the New South Wales Court of Appeal has agreed that, to the extent possible, witnesses should give evidence to the best of their recollection – if they cannot recall the actual words used, then the evidence should be prefaced accordingly.

The background: Kane’s Hire and words to the following effect

In the recent single judge Federal Court decision of Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381, the Court expressed its reservations with “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."

The Court criticised such an approach as being logically, ethically and grammatically wrong stating:

“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’s 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.”

Justice Jackman added:

“the form in which evidence of conversations is given should reflect the difference between verbatim memory and gist memory.”

New South Wales Court of Appeal steps in: capturing the essence of a past conversation

On 26 September 2024, the New South Wales Court of Appeal handed down its decision in Wild v Meduri [2024] NSWCA 23.

In the course of the matter, Counsel for the respondents submitted that there should be no adverse credit finding made against a particular witness because he was unable to recall, after a period of ten years, the exact words that he had used in a conversation. The Chief Justice, who wrote the lead judgment, agreed, noting that:

“a detailed purported recollection of the exact words used at such a temporal remove would tend against common experience and attract a measure of judicial scepticism, as noted as long ago as 1883.”

The Chief Justice nevertheless disagreed with criticisms levelled at the use of direct speech, which he considered was unfounded where the use of direct speech in an affidavit was prefaced with a phrase like “words to the following effect”. Evidence in this form will:

“represent the witness’s best effort to capture the gist of a conversation which can then be tested in cross examination if it is controversial or otherwise material. 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.”

Where a prefacing phrase such as “words to the effect” or some like expression was used, the Chief Justice considered that it was being made clear that a witness was not attempting to provide a verbatim recollection of a conversation. Accordingly, that witness should not be penalised or criticised for given evidence in that form.

The Chief Justice also noted the criticism levelled at the practice in New South Wales in Kane's Hire. In response, the Chief Justice noted that the underlying purpose of this approach was so as to:

“come as close to capturing the essence of a past conversation as possible without, when the customary preface is used, purporting to supply exactitude.”

For completeness, one of the other sitting judges Justice White, while in agreement with the decision reached by the Chief Justice, did not agree with the Chief Justice’s approach. Rather, Justice White reinforced the position that a witness’s evidence must be given in their own words, and in a manner that is compliant with the relevant rules of evidence. Justice White observed relevantly:

“Everyone would acknowledge that it would be improper for a lawyer to coach a witness by saying “if you are asked this question ... you should say ...”. There is no difference in kind between such conduct and a lawyer’s converting the witness’ own words into a different form, unless that is necessary to put the evidence in a form required by the court. Unless the evidence is inadmissible the court should not make any such requirement. The difficulty with the practice commonly adopted in this State is that it can give a false impression of the witness’ actual recollection.”

Key takeaways

It is clear that there is no one size fits all approach when drafting affidavit evidence of conversations that are alleged to have occurred – however, the one consistent takeaway is that you can only give evidence of matters that you recall, or are known to you, and your evidence should not attempt to overreach on that recollection.

• If you recall exact words used – give that evidence, and make it clear that you remember the words used.
• if you recall some, but not all of the words used – with the assistance of your legal advisers, make it clear that your recollection is limited in that way.
• if you do not recall any specific words used, but recall the gist of the conversation – that is your evidence. Do not allow your affidavit to give a false impression of the nature and extent of your recollection, or your credibility may suffer as a result.