The unreliability of evidence in chief adduced in written form March 14, 2016
- The limitations of affidavits as vehicles for conveying an accurate account of past oral communications are well-known. In Thomas v SMP (International) Pty Ltd  NSWSC 822, I set out some of the considerations:
 … Affidavits have an important function and serve a useful purpose. But they are not necessarily always the best means of leading evidence-in-chief. Where there are disputed issues of fact involving oral representations and conversations, affidavit evidence can sometimes be an unsatisfactory medium for leading the evidence-in-chief.
 It is well known that eminent jurists with unparalleled trial experience have expressed misgivings about the elicitation of evidence-in-chief by affidavits in cases whose success or failure depends on disputed representations and conversations. A colourful but apposite aphorism frequently invoked by Hon T E F Hughes QC, and attributed to Lord Buckmaster, is that “the truth sometimes leaks out of an affidavit – like water from the bottom of a well”…
 Justice Emmett elaborated more fully on the difficulties to which affidavits and witness statements can give rise in Practical Litigation in the Federal Court of Australia – Affidavits (2001) 20 Australian Bar Review 28:
Where evidence is controversial, particularly where credibility of the witness is involved, the adducing of the evidence in written form is often undesirable and can be quite unfair… With the very best of intentions a lawyer who settles an affidavit or a witness statement will invariably reduce the language of the witness to the lawyer’s own language. That may entail changes in meaning and emphasis that, although not intended, may expose a witness to unnecessary difficulties in the course of cross-examination. On the other hand, a dishonest witness will always be assisted by having evidence put into credible form by a lawyer…
 In 1996 in the Access to Justice Report, Final Report (HMSO), 1996 at , Lord Woolf pithily observed:
Witness statements have ceased to be the authentic account of the lay witness; instead they have become an elaborate, costly branch of legal drafting.
 And as long ago as 1975, the New South Wales Law Reform Commission, in Working Paper 14, (1975) – Procedure: Common Law Pleadings, also observed (paragraph 7.3): “affidavit evidence is said (and with justification) to be more the evidence of the legal advisor than the witness”.
 A common thread in the commentary is that the studied reconstruction, and formulation in writing, of contentious conversations and oral communications in language that is usually settled and refined by lawyers, can sometimes be unreliable and unintentionally misleading. …
- While affidavits are, for those reasons, often unreliable touchstones of the truth, oral evidence is frequently also unreliable for a different reason. In Watson v Foxman (1995) 49 NSWLR 315 at 319, McLelland CJ in Eq succinctly stated what we all recognise as an everyday aspect of the judicial process:
…human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said.
- Lord Pearce explained these issues, and emphasised the ‘utmost importance’ of contemporary documents, in his speech in Onassis and Calogeropoulos v Vergottis  2 Lloyd’s Rep 403 at 431, a successful appeal by a litigant named Aristotle Socrates Onassis:
Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.
- Given those considerations, a healthy scepticism about the reliability of affidavit and oral evidence of conversations is often justified – in many types of cases but especially in commercial cases. In recent times, no one has put the matter quite so decisively as Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd  EWHC 3560 (Comm) at :
…the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.
He added perceptively however:
This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events.