"We shouldn't do this anymore" or words to that effect

By Sam Blackman

Published: 11 October 2023

 Updated: 18 October 2023

Introduction

The recent decisions of Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 (Kane) and Gan v Xie [2023] NSWCA 163 (Gan) will likely shake up how NSW legal practitioners will prepare witness statements and affidavit evidence where a witness recalls only the gist of a conversation. 

Divergent approaches to evidence preparation in NSW and VIC

Scenario: imagine that you have a witness who needs to give evidence about a conversation, and that evidence is to be given in the form of an affidavit or statement (or even viva voce). Now, assume that the witness remembers the gist of the conversation – maybe a few distinct words – but not the entire relevant conversation word for word. 

 

In NSW the “usual” practice was to recreate the conversation in direct speech (quoted speech) as best as the witness could recall but prefaced with  “words to the following effect”. The purpose of the preface was to indicate that those particular words may or may not have actually been spoken, but that was the gist of the conversation. 

 

Whereas, in Victoria (per Jackson J in Kane) the practice was not to record the conversation as direct speech, but to include a summary in indirect speech (also called recorded speech) with quotation marks only used where particular words were actually recalled by the witness.

NSW approach (example)

Milicevic & Anor v Ferrari East Pty Ltd & Ors (No 3) [2023] NSWSC 1116 at 136:

 

Gerard Ferrari deposes that sometime in mid-September 2013 he called Mr Milicevic and they had a conversation in words to the following effect:

 

Gerard: Haris, for the past few weeks, Bevan has been negotiating with Ron for us to purchase the assets of Belgravia. That sale is going ahead and will settle on 1 October. At that time, we will become business partners of the Myer JV.

 

Milicevic: I can’t believe Belgravia sold without first coming to me.

VIC approach (example)

Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd (No 10) [2023] VSC 524 at [1310]:

 

In his witness statement, Jason gave evidence that:

 

In around mid-2015, I approached my dad and asked him if he could lend me some money. My dad said that I should take out a loan secured against 83 Cuthbert Street and that he would tell David to organise the loan for me. I said to my dad that I would manage the loan repayments. I do not recall the precise words that we used, but that was the substance of our conversation.

Law before Kane

In Kane, Jackson J pithily summarised the law on the use of direct speech in evidence at [123] and it is extracted below:

 

There is ample authority for the proposition that there is no rule of the law of evidence in Australia that evidence of conversations must be given in direct speech: Commonwealth v Riley (1984) 5 FCR 8 at 34 (Smithers, Sheppard and Wilcox JJ); R v Wright (1985) 19 A Crim R 17 at 19 (Mathews, McPherson and Vasta JJ); R v Noble [2000] QCA 523; [2002] 1 QdR 432 at [20] (Pincus JA, with whom McMurdo P and Mackenzie J agreed); LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd [2001] NSWSC 688; (2001) 53 NSWLR 31 at [8] (Barrett J); Hamilton-Smith v George [2006] FCA 1551; (2006) 247 FCR 238 at [79]- [83] (Besanko J). Even as long ago as 1984, the Full Court said in Commonwealth v Riley at 34 that the practice of adducing evidence of conversations in direct speech was probably disregarded as often as it was followed. Evidence should be given in direct speech only if the witness can remember the actual words used: Noble at [20]; LMI Australasia at [8]; Hamilton-Smith at [83].

 

In NSW, practitioners were taught the use of direct speech in affidavits even where only the gist was recalled by the witnesses. The following is extracted from a paper prepared for use in the NSW bar readers course:

 

7.23 Typically in a lay Affidavit there will be evidence of conversations. Ideally, for it will have much greater weight, it is best for a witness to give evidence of the exact words used. However, we all know that witnesses cannot be expected to remember, word for word, conversations which took place in the past, even as recently as a few days before the Affidavit is sworn. Hence, the familiar drafting technique in respect of conversations of commencing with an expression such as:- “We then had a conversation, where words to the following effect were said ….”

 

7.24 What then happens is that the drafter of the Affidavit seeks to put in direct speech the text of the conversation. I have been in courts where judges, explaining this process to witnesses, have asked them to imagine a cartoon strip and the ‘bubble’ coming out of the cartoon character’s mouth and ask them to ‘pretend’ they are in a similar situation and to give evidence accordingly. We all know how artificial this is and how difficult it is for a lay person to adjust and accommodate to this mode of giving evidence.

 

7.25 Nevertheless, unrepentantly I have on many occasions drafted or settled Affidavits whereby the relevant conversations are put into direct speech. I still think it is the safer and correct course to pursue. However, in more recent times, some courts have become increasingly disposed to permit evidence of conversations to be given in indirect speech. Barrett J concluded in LMI Australasia Pty Limited v Baulderstone Hornibrook Pty Limited that there is no rule of law, whether under the Evidence Act or otherwise, which makes inadmissible evidence of a conversation given in indirect speech. It seems, from personal and anecdotal experience, that judges in NSW are more keen on observing the “direct speech” rule than judges in other Australian jurisdictions.

 

Alan Sullivan QC, ‘Written Evidence: Witness Statements and Affidavits as an alternative to oral evidence‘  (2015) (available online here).

 

As properly understood, the NSW approach was a convention rather than a rule of evidence. From my own experience, it was a very common practice that evidence of all important conversations was prepared in this manner. I have seen this approach followed countless times.

Principles from Kane

The NSW approach was heavily criticised in Kane by Jackson J (see case summary here) for many reasons, his Honour describing the practice at [127] as “logically, ethically and grammatically wrong.” The full reasoning is compelling.

At [129], Jackson J provides six (6) general principles to follow when drafting affidavits or statement evidence of witnesses regarding past conversations, which is summarised as follows:

    1. The form of the evidence should correspond to the nature of the actual memory of the witness;
    2. Where a witness only remembers the gist or substance of what was said, then that evidence should be given in indirect/reported speech;
    3. Where a witness claims to remember particular words or phrases, then those should be included in quotation marks;
    4. If a witness genuinely claims to recall the actual words of a conversation, then direct speech should be used and any contemporaneous notes of the conversation (if relevant) should be stated and tendered;
    5. Direct speech evidence should not be prefaced by the phrase “in words to the following effect”; and
    6. A witness who claims to have remembered the exact words of a conversation, but is found to have exaggerated the nature or quality of their memory after cross-examination may suffer an adverse effect on credibility, but the inability to cross-examine on the basis of indirect speech is not unfairly prejudicial within the meaning of s135 (Uniform Evidence Acts).

These guidelines are useful and succinct and will likely be followed in the future in NSW, particularly after the passage in Kane was approved by the New South Wales Court of Appeal in Gan. 

Conclusion

The reasoning of Jackson J in Kane is compelling and it is likely to reverberate for some time. Going forward, it is advisable that practitioners are guided by the six (6) general principles of preparation outlined above. While there may be some inevitable pushback due to the inevitable historical inertia, it appears that this approach is sound and ought to be followed. It has already been approved by the NSW Court of Appeal in Gan at [119].

Disclaimer

The contents of this article is of a general nature only and is not a substitute for legal advice from a qualified legal practitioner. Check the date of publication and any update as the contents may have been superseded by changes in law.