Rules of conversation evidence in affidavits: do you know the gist?

Background

Many readers would be familiar with affidavits relied upon in Court proceedings, whether it be in-house lawyers, council enforcement officers preparing affidavits for civil/ criminal enforcement proceedings or developers preparing affidavits seeking that class 1 proceedings be expedited due to financial costs of delay. Affidavits are usually drafted with the assistance of lawyers, which will often involve having to draft, or re-draft, evidence about conservations into direct speech ie. I said “X”, he/ she said “Y”.

It has long been the standard practice in New South Wales that affidavit conversation evidence is expressed in direct speech . As witnesses rarely recall the specific words of conversations, direct speech used in affidavits is usually prefaced by a phrase such as “we had a conversation with words spoken to the following effect” to highlight that the witness only recalls the substance or gist of what was discussed.

In Gan v Xie [2023] NSWCA 163, the NSW Court of Appeal held that the primary judge had erred in rejecting the conversation evidence of two witnesses on the basis that they had no separate and specific recollection of particular words used, such that their evidence was unreliable and of no probative value.¹ The Court of Appeal affirmed the affidavit principles outlined in the Federal Court decision of Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 where Jackman J criticised the practice of drafting substance conversation evidence in direct speech, stating that it is “logically, ethically and grammatically wrong”.²

Affidavit principles

In Kane’s Hire,³ Jackman J underlined that there is no rule of the law of evidence in Australia that requires conversation evidence to be drafted in direct speech.⁴ His Honour noted that the form in which conversation evidence is given should reflect the difference between verbatim memory and gist memory and outlined the following general principles applicable to conversation evidence:⁵

1. the form of the evidence should correspond with the nature of the witness’s actual memory of the conversation;
2. indirect speech should be used when a witness remembers only the gist or substance of what was said;
3. if a witness remembers particular words or phrases, then those words or phrases should be put in quotation marks to indicate that they are verbatim quotations, even if the remainder of the evidence is in indirect speech;
4. if a witness recalls the actual words used in a conversation, then the evidence should be expressed in direct speech, quoting the words actually spoken;
5. evidence given in direct speech should not be prefaced by the phrase “in words to the following effect”, as this expression blurs the important distinction between gist memory and verbatim memory; and
6. a witness who claims to remember the exact words of a conversation may suffer an adverse finding to their credibility if they are found to have exaggerated the nature and quality of their memory during cross-examination.

Importantly, the NSW Court of Appeal in Gan v Xie held that any objection to indirect speech comprising the gist of a conversation as being inadmissible as opinion evidence is countered by s78 of the Evidence Act 1995 (NSW) which provides that the opinion rule is inapplicable to evidence of an opinion expressed by a person if:

1. the opinion is based on what the person saw, heard or otherwise perceived about an event; and
2. evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the event.

Implications

The case of Gan v Xie confirms that the principles outlined by Jackman J in Kane’s Hire are applicable to the preparation of conversation evidence when drafting affidavits. Whilst this is of course relevant to lawyers, it is also relevant to all those in the planning, environment and local government sector that are called upon to prepare affidavits related to legal proceedings, such as council compliance officers.

Accordingly, those drafting affidavits should refrain from expressing gist or substance evidence in direct speech moving forward. This change to the standard practice is particularly important, as adverse findings to a witness’s credibility due to improper drafting of conversation evidence may detrimentally impact a case’s prospects of success.

This article was written by Philip Brown, Partner, and Vanessa Samaras, Solicitor.

¹Gan v Xie [2023] NSWCA 163, [118].
²Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381, [127].
³Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381.
⁴Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381, [123].
⁵Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381, [129].