Recent criticism by the Federal Court: Use of direct speech in affidavit evidence

In the recent matter of Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381, Justice Jackman criticised the current standard practice of recording conversations in affidavit evidence. In his judgement, Justice Jackman challenged the recording of conversations as direct speech in affidavit evidence, when the witness may 'only recall the ‘gist’ of a conversation, stating that the practice is ‘logically, ethically and grammatically wrong’.
Key points
  • There is a recognisable distinction between ‘verbatim memory’ and ‘gist memory’
  • Only verbatim recollection of words spoken should be recorded as direct speech in affidavit evidence.
  • There is no assumption that ‘evidence in direct speech is more reliable or credible than evidence in indirect speech, or vice versa’
Direct Speech in Affidavit Evidence
A key witness in the matter before his Honour conceded that he only recalled ‘the idea, what the conversation was about’ when being cross-examined on a conversation quoted in direct speech in his affidavit. It became clear to the Court that the witness only recalled the ‘gist’ of the conversation, making it ‘impossible to ascertain…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’. 

Currently, the inclusion of direct speech in affidavit evidence is usually preceded by the phrase ‘in words to the following effect’, which Justice Jackman states makes ‘the evidence appear more precise and weighty than it really was, while allowing the witness some flexibility from verbatim accuracy if challenged on particular words in cross-examination’. 

Regardless of whether the customary preface ‘in words to the following effect’ is included, his Honour outlined that the inclusion of direct speech in affidavit evidence is ‘wrong’ on the following grounds:
  • Logically, as ‘one cannot derive (as distinct from guess at) the actual words spoken simply from their gist’.
  • Ethically, as ‘the evidence given as a result of that process conceals the true nature and quality of the witness’ memory and ‘conveys a false impression of that memory’.
  • Grammatically, as 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’.
As a result, his Honour states the distinction between ‘verbatim memory and gist memory’ should be reflected in affidavit evidence by only capturing direct speech in quotation marks. It is important to note that ‘gist’ memory ‘tends to be more stable and durable over time than verbatim memory’ and therefore ‘there is no reason…to think that evidence in direct speech is more reliable or credible than evidence in indirect speech, or vice versa’. 

His Honour also suggested that the phrase ‘in words to the following effect’ be removed when quoting direct speech, given it ‘blurs the distinction between verbatim memory and gist memory’.

Furthermore, in the matter of Girchow Enterprises Pty Ltd v Ultimate Franchise Group Pty Ltd [2023] FCA 420, Justice Thawley agreed with Justice Jackman’s interpretation, stating ‘it is fair to say that attention was not given to the sorts of considerations recently emphasised by Jackman J in Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 at [123] to [129]’ when discussing the affidavit evidence before the Court. 

Justice Thawley also reinforced the importance of ensuring an affidavit ‘reflect[s] a witness’s evidence, not the evidence which the legal practitioner would prefer to see in light of the case which the legal practitioner has pleaded or wishes to run’.

We note Justice Jackman’s comments have not been addressed in New South Wales courts at this time.
The distinction between ‘verbatim memory and gist memory’ is one which should be regarded highly by legal practitioners, especially in the Federal Court. Justice Jackman’s, and later Justice Thawley’s, criticism in this area is one that should be carefully considered by legal practitioners in the preparation of affidavit evidence.

Blog post written by Partner, Chloe Ellis, Consultant, Chris Moore, and Solicitor, Madison Walsh.

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