By and -

Snapshot

  • Lawyers should never put words into the mouths of witnesses and witness evidence of conversations should only use direct speech where the witness recalls the words spoken.
  • Lawyers can test the veracity of their witnesses’ evidence and should assist witnesses to ensure their affidavits are well structured, succinct, relevant and admissible.
  • Where a witness exactly recalls the words said, using direct speech is appropriate in affidavit evidence but should not be preceded with ‘words to the effect of’.

There has been a flurry of recent decisions highlighting the use of direct speech in witness evidence prepared by members of the NSW legal profession. These decisions indicate a growing judicial dissatisfaction with the NSW legal practice. This dissatisfaction has less to do with the doctrine of direct speech and more to do with suspicion that some lawyers are drafting witness evidence without even speaking to the witnesses and essentially inventing the ‘evidence’. In such cases, the unsuspecting witness, perhaps bamboozled by the entire litigation process and trusting the expertise of the lawyer, then dutifully swears the statement, perhaps without even reading, let alone questioning, the veracity of their ‘evidence’.

Lawyers should never construct witness evidence

This was the chief concern of Thawley J in Girchow Enterprises Pty Ltd v Ultimate Franchising Group Pty Ltd (Final Hearing) [2023] FCA 420, who found:

‘the passages extracted above were “cut” and “pasted” between affidavits, before being altered in minor ways. The inference is compelling for many reasons, including the misspelling of the word “projects” rather than “projections”. These were not the only passages which appear to have been prepared in that way’ (at [61]).

Thawley J went on to highlight this as an emerging theme in legal practice and an important issue (at [67]. The artificial construction by lawyers of affidavit content, including direct speech conversations, is deeply problematic.

In White v Data Transfer Services Pty Ltd & Ors (No 2) [2022] NSWSC 963, a witness admitted to not reading the whole affidavit he had signed, alleging that it was made up by his solicitor:

‘Q: Can you look at paragraph 19 please?

A: That’s right, yes, I can see that there. Yes. That’s come up yes.

Q: And it says that is, “I was copied into an email between Nadim and Mr Mina”?

A: Yes.

Q: And you see that you put a copy of the email into your exhibit?

A: That is correct, that was made up by my solicitor, yes.

Q: Made up by your solicitor?

A: Yes.

Q: Is that what you said?

A: Yes.

Q: So, you didn’t read the emails when you swore the affidavit, is that right?

A: That’s right, yes’ (at [14]).

These are chilling words for any practitioner to hear from their client in cross-examination. The same witness disowned a further affidavit despite accepting he had read and signed it while aware of its inaccuracy. Williams J consequently rejected the witness’s evidence ‘in relation to disputed matters unless it is inherently probable, corroborated by contemporaneous documents and/or contrary to his own interests’ (at [19]).

Making up evidence breaches the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (‘Conduct Rules’):

  • a solicitor must not deceive or knowingly or recklessly mislead the court (rule 19.1); and
  • a solicitor must not coach a witness by advising what answers the witness should give to questions which might be asked (rule 24.1.2).

Breaches of the Conduct Rules can result in findings of unsatisfactory professional conduct pursuant to section 296 of the Legal Profession Uniform Law 2014 (NSW) (‘LPUL’) or, where consistent or substantial failures occur, a finding of professional misconduct pursuant to section 297.

Jackman J eloquently explained what lawyers should not do in Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 (‘Kane’s Hire’). His Honour described the ‘working up’ of direct speech where a witness remembers the ‘gist’ of the conversation and not the ‘verbatim’ words as ‘logically, ethically and grammatically wrong’. The Court of Appeal decision in Gan v Xie [2023] NSWCA 163 (‘Gan v Xie’), and numerous NSW decisions which have followed it, approved Jackman J’s views (at [119]–[123]). In Gan v Xie, there was an erroneous rejection of evidence attesting to the substance or gist of a conversation. White JA extracted with approval the full analysis of Jackman J in Kane’s Hire, confirming that a witness story which contains no direct speech should be reported through the natural indirect speech wording of the witness, rather than artificially creating words that the witness cannot recall (at [126]).

Lawyers should craft witness evidence

However, neither should witnesses be abandoned to draft their own affidavits. Unassisted witnesses are likely to provide ‘inappropriate, confusing and unhelpful’ evidence (Thomas & Ors v SMP (International) Pty Ltd & Ors [2010] NSWSC 822 at [9]-[11]). Lay witnesses rarely understand the legal aspects of the dispute, let alone the laws of evidence and civil procedure. Affidavits should be carefully crafted by lawyers and that care should be directed to distilling the relevant and admissible knowledge of the witness, and succinctly and effectively conveying it to the court. Lawyers should be cognisant of lay witness tendencies to defer to their lawyers (Queensland v Masson (2020) 381 ALR 560; [2020] HCA 28 at [112]) and ensure the witness agrees with the final affidavit wording.

Given the precedent set by Gan v Xie, it is unlikely that NSW judges will reject witness evidence not presented as direct speech.

Rule 24.2 of the Conduct Rules states ‘a solicitor will not have breached Rules 24.1 by … questioning and testing in conference the version of evidence to be given by a prospective witness’. Jackman J’s analysis in Kane’s Hire should not lead to a reduction in the rigour of examining a witness, particularly in the preparation of affidavit evidence in chief. The recollection of witnesses is commonly an important aspect of evidence but lay people rarely instinctively recount events in admissible, let alone optimal, evidentiary form. Part of a legal practitioner’s role in preparing written evidence in chief is to interrogate the veracity of the evidence provided by each witness to ensure, for example, that the evidence is not inadmissible hearsay and the witness’s recollection is robust. Accepting, without testing, a witness’s evidence in gist form may result in the witness importing other matters into their recollection of a conversation.

Asking a witness to recall who said what words in the context of recounting a conversation is a common technique for testing the strength of the witness’s recollection. Where such probing elicits direct speech from the witness, such speech should be included in an affidavit, provided the witness is confident those words were said.

When testing a witness, lawyers must be careful to avoid leading questions as these tend to influence the witness’s evidence. As the Full Court said in New Aim Pty Ltd v Leung [2023] FCAFC 67, this is a core ethical requirement of legal practitioners when gathering evidence (at [119]). This differs significantly from the old custom of forcing witnesses to construct direct speech in circumstances where the witness cannot recall the words said.

Direct speech is powerful but gist evidence is also valuable

Jackman J is in favour of using direct speech where a witness is adamant as to what was said. His Honour also acknowledged that use of direct speech was the ‘usual practice’ in NSW despite there being no evidentiary requirement for using direct speech (at [119] and [123]). Indeed, in Lmi v Baulderstone [2001] NSWSC 688, Barrett J observed 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, but there are obviously very good reasons why courts have, over the years, been astute to regard the direct speech form as the best form’ (at [8]).

In the absence of any rule discouraging direct speech for all evidence of conversations, it is unsurprising the tradition persisted in NSW. Cases, such as Gan v Xie and The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 (at [183]), should provide the necessary incentive for NSW lawyers to abandon the tradition.

However, these cases do not promote abandoning the use of direct speech entirely. In Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156, Jackman J confirmed his ‘remarks were primarily directed to ending the longstanding practice in New South Wales of drafting affidavits in a way which converted a witness’s actual memory of only the gist of a conversation into direct speech, thus giving a false appearance of verbatim memory, prefaced by the confusing formula that the conversation occurred “in words to the following effect”’.

Justice Jackman explains that, where a witness has relied on a contemporaneous note to refresh his or her memory, that should be expressly stated, and the note tendered (Kane’s Hire at [129]). Therefore, prudent practitioners should interrogate a witness’s source of their confidence about specific words used in a conversation and, where appropriate, include material supporting direct speech.

Given the precedent set by Gan v Xie, it is unlikely that NSW judges will reject witness evidence not presented as direct speech. In Reeves v Reeves [2024] NSWSC 134, Meek J confirms that ‘the fact that a witness cannot recall precise words used, and the specific occasion on which words were used, does not mean that the person’s memory of the substance or “gist” of what was said must be rejected’ (at [175]). In Nano Logistics Pty Ltd v Raby Omran [2024] NSWSC 236, Kunc J relies on Gan v Xie as confirming the ‘acceptability of gist evidence’ while importantly noting that gist evidence also needs to be reliable (at [22]).

Lawyers should counsel witnesses that inaccurate recollection of specific conversations may result in adverse credibility findings.

In Kane’s Hire, Jackman J warns that witnesses’ exaggeration of their recollection of conversations may adversely affect their credibility (at [118] – [130]). Lawyers should, therefore, counsel witnesses that inaccurate recollection of specific conversations may result in adverse credibility findings.  Lawyers should ensure witness evidence is as accurate as possible but, as Stevenson J recently noted in Construction & Design Australia Pty Ltd v Robinson (No 2) [2024] NSWSC 376, judges do not expect ‘unattainable perfection’ (at [6]).

What a conversation might look like in an affidavit

Conversations may comprise multiple types of recollection and affidavits should reflect this. For example, part of a conversation might be recorded in an affidavit as:

On 15 October 2022, Travis and I discussed the terms of the draft contract. I cannot recall everything we said but I do remember that we spoke at length about the warranty provisions.

I am sure he said something like: I don’t want the clause to contain a five-year warranty. I’d prefer a two-year warranty.

I replied, “Two years is not long enough”. I am certain I said exactly those words because I made a note in quotations on my phone. A copy of the note on my phone is annexed to this affidavit and marked “Annexure A”.

In the above example, the first two paragraphs are forms of gist recollection and the third paragraph is certain verbatim recollection. The certain verbatim recollection is then supported by an explanation and, because a document has been relied upon, an exhibit.

Revision of existing evidence

For any existing affidavits containing conversations not prepared in line with the above principles, it appears the judiciary will likely treat apparently direct speech evidence (using quotations and prefaced by the phrase ‘with words to the following effect’) as gist evidence. This is how evidence of lengthy conversations occurring 17 years prior was treated by Nixon J in Salmon v Albarran [2023] NSWSC 1238 (at [43]).

Where the actual words spoken are critical to the relief claimed and the witness, in fact, has verbatim recollection, but ‘words to the effect of’ was used, it may be prudent to revisit such evidence by preparing a supplementary affidavit identifying that evidence as verbatim evidence. Otherwise, in accordance with the obligation in section 56 of the Civil Procedure Act 2005 (NSW) to be ‘quick and cheap’, it may not be necessary for lawyers to put their clients through the additional expense in repreparing finalised evidence, provided the existing statements reflect the witness’s recollection. Solicitors need to make their own assessment or seek advice of counsel.

Conclusion

The form of conversation evidence should correspond to the nature of the actual memory the witness has of the conversation. In summary, witness evidence of conversations should be treated as follows:

  • Gist recollection: where the witness can recall the import but not the wording of what was said, even when prompted to consider the contents of a conversation. In such cases indirect speech should be used in affidavit evidence as recommended in Kane’s Hire (at [129]). Evidence in this form should not, of itself, be considered inadmissible or unreliable, as confirmed in Gan v Xie (at [120] – [121]).
  • Certain verbatim recollection: where the witness recalls the exact words used. In such cases, direct speech should be used in affidavit evidence with no prefacing of the direct speech with the phrase ‘in words to the following effect’, following Kane’s Hire (at [129]). Where appropriate, an explanation of the witness’s recollection should be provided. If the witness only recalls certain words, only those words should be in quotation marks.

Affidavit evidence prepared properly prior to Kane’s Hire may not need to be amended and re-sworn in every case. However, for all conversation evidence going forward, practitioners must prepare witness affidavits with regard to the principles formulated in Kane’s Hire and Gan v Xie.



Dr Sonya Willis is a senior lecturer at Macquarie Law School and Andrew Hack is a senior associate at Emerson Lewis Lawyers. Both are members of the Law Society of NSW Litigation Law and Practice Committee.