The way evidence is presented in a court case could be facing change
To ease the caseloads in Courts today, many jurisdictions including the Federal Courts system and NSW Courts have adopted the practice of witnesses giving their evidence in chief in the form of an affidavit and lawyers have, over the years, built a habit of helping their witnesses make imperfect recollection of speeches by using words such as “to the following effect” before making an imperfect “quotation” of what someone said in the past.
His Honour, Jackman J, had recently criticised this established practice in his decision in Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd, calling it “logically, ethically and grammatically wrong”. His Honour then went on to explain that the manner in which evidence of conversations should reflect the difference between verbatim and gist memory. Quoting speeches in the manner that they have been actually blurs the important distinction between verbatim memory and gist memory, and leaves the Court unable to ascertain which kind of recollection is being claimed by the witness.
The practical effect of the Court’s inability to ascertain the kind of recollection, and hence the inability of counsels to cross-examine on these issues could result in a Court taking a cautious approach to such evidence, and in more extreme cases, almost relying totally on documentary evidence and those that are uncontroversial between two contesting witnesses, affecting the manner in which they can determine a case.
*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*
Special Counsel | Accredited Family Law Specialist NSW
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