Federal Court: Unjustified direct speech is “logically, ethically and grammatically wrong”

Is the use of direct speech always helpful to the court when preparing affidavits and other written evidence? At least one judge of the Federal Court says no.

In Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381, Justice Jackman criticised (at paragraphs [118]-[130]) the practice of expressing evidence of conversations in direct speech when a witness only recalls the gist of the conversation. His Honour said 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”)” when the witness’s actual memory is merely of the substance or gist of what was said, is “logically, ethically, and grammatically wrong” and cannot be said to be “allied to an iron sense of principle”. This is because:

• one cannot derive the actual words spoken simply from their gist;
• evidence given as a result of such a process conceals the true nature and quality of the witness’s memory and conveys a false impression of that memory; and
• the use of quotation marks indicates that the relevant expression is a quotation of the exact words which were spoken.

Applying that reasoning, his Honour identified (at [129]) six general principles applicable to the preparation of written evidence (paraphrased below with citations omitted):

• The form of the evidence should correspond to the nature of the witness’s actual memory (i.e. whether it is verbatim memory of a particular word or phrase, or gist memory of the conversation). Direct speech is not inherently more reliable or credible than evidence in indirect speech.
• If the witness remembers only the gist of what was said, then the evidence should be given in indirect speech.
• If the witness claims to remember particular words or phrases used, then those words or phrases should be put in quotation marks to indicate that they are verbatim quotations, even if the evidence is otherwise given in indirect speech.
• If a witness recalls the actual words used in a conversation (for example, in rare cases of photographic memory or more commonly because they have a contemporaneous note), direct speech may be used. If the witness relies on a contemporaneous note, this should be expressly stated and that note should be tendered.
• Direct speech should not be prefaced by the phrase “words to the following effect”, because that expression blurs the important distinction between verbatim memory and gist memory and leaves the court unable to ascertain which kind of recollection the witness has.
• The credibility of a witness may be adversely affected if the witness claims to remember the exact words of a conversation when cross-examination reveals that he or she does not. On the other hand, evidence in indirect speech will not be excluded as unfairly prejudicial under s 135 of the Evidence Act 1995 (Cth) simply because the witness cannot be cross-examined on the exact words spoken.

Although his Honour noted that the practice of using unjustified direct speech is more prevalent in New South Wales, his Honour’s comments are relevant to practitioners filing written evidence in any court. In particular, his Honour’s observations are consistent with the usual order as to the form of witness statements made in the Commercial Court of the Supreme Court of Victoria, which states that: “where the witness statement contains conversations these should, if the witness’s recollection permits, be expressed in direct speech. If this is not possible, this fact should be stated and the witness’s best recollection or the substance of the conversation may be set out” (emphasis added).