Written by Rachel Woods
The Federal Court of Australia provided guidance as to how evidence of a witness’s recollection should be drafted in the recent decision of Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381.
The Facts
Kane’s Hire Pty Ltd (“Kane’s Hire”) purchased an aircraft from Anderson Aviation Australia Pty Ltd (“Anderson Aviation”) for $253,660.00. To be granted a certificate of airworthiness, the aircraft was required to have a “dry weight” (that is, a weight without passengers) of less than 397.98kg. Throughout the course of purchase discussions, Kane’s Hire indicated they wished for several modifications to be made to the aircraft, including a more powerful engine and more advanced technological features. Anderson Aviation provided a list of costs of the additional modifications to Kane’s Hire, however, the weight of some of the additional parts and modified features was not clear, and the overall “dry weight” of the aircraft was not known at the time the order was placed.
Notwithstanding this, Kane’s Hire proceeded with the purchase of the aircraft. Upon delivery to Kane’s Hire, the aircraft was referred to the relevant authorities for a certificate of airworthiness, however, only a restricted airworthiness certificate was issued because the dry weight of the aircraft, after the modifications requested were affected, exceeded the dry weight limit. Kane’s Hire alleged the aircraft was heavier than was represented and promised under the relevant purchase agreement and, because of breaches of contractual obligations and misleading conduct on the part of Anderson Aviation, Kane’s Hire suffered loss.
The Evidence
The evidence adduced by Kane’s Hire of the conversations which took place with Anderson Aviation was drafted using alleged direct speech but was prefaced with the phrase “words to the effect of”. By comparison, the evidence given by Anderson Aviation did not use direct speech. The evidence given by Anderson Aviation was broader in nature, recalling the general gist of the conversations which took place.
Commentary Regarding Conversational Evidence
The Court was scathing of the now common practice of evidence of alleged direct speech being prefaced with the phrase “words to the effect of”. The Court noted this practice arose as a means of protecting a witness from challenges in cross-examination where the witness could not recall the exact words used in conversation. The Court further noted the practice of a witness and a lawyer creating a conversation in direct speech from the witness’s memory of the gist of a conversation was “logistically, ethically and grammatically wrong.” The Court provided further explanation for this criticism, noting:
- It is logically wrong because “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.”
How Conversational Evidence Should be Drafted & Key Takeaways
The Court provided some guidance at [129], stating:
- The form of the evidence should correspond with the nature of the actual memory of the witness;
- If the witness remembers only the gist of what was said, not the precise words, then evidence should be given as indirect speech, in terms which reflect the witness’s actual recollection;
- If the witness claims to remember particular words or phrases being used, those words or phrases should be put in quotation marks to indicate verbatim quotes;
- If the witness claims to recall the actual words used in a conversation, then the evidence should be given as direct speech;
- Evidence given in direct speech should not be prefaced by the phrase “in words to the following effect”.
The Court also noted that a witness who claims to recall the exact words used in a conversation, who later is found to have exaggerated the nature and quality of their memory, may well suffer an adverse effect on their credibility as a result.
This case serves as a timely reminder that witnesses should not give evidence in direct speech in the event they are unable to recall the exact words which were used in the conversation, and that doing so could ultimately lead to adverse inferences being drawn.
It is important to ensure, when interviewing witnesses (either as a claims officer or solicitor), you ascertain whether the witness can recall words used in conversation verbatim or whether the witness is simply recalling the general gist of the conversation (and draft any evidence accordingly). It would also be prudent to obtain evidence of relevant conversations as close to the date they occurred as possible, with a view to preserving the memory of the witness as best as possible.
If you wish to discuss this decision, please contact Spencer Pascal 02 8047 2870 or any member of the Ligeti Partners team on 03 9947 4500.
