It is customary to commence an article or address in New South Wales about the drafting of written evidence by lawyers with a quote variously attributed to Lord Buckmaster or Lord Justices Bowen and Chitty: ‘truth may sometimes leak out from an affidavit, like water from the bottom of the well.’¹ Given the uncertain provenance of the quote, it should probably not be in direct speech.

This law lord drollery reflects the judicial scepticism expressed by Callinan J² that it is impossible to avoid the suspicion that written evidence is ‘frequently the product of much refinement and polishing in the offices and chambers of lawyers representing the parties, rather than of the unassisted recollection and expression of them and their witnesses.’³

For those of us involved in the preparation of witness statements and affidavits, the recent judgments of Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd⁴ and Gan v Xie⁵ have given us reason to reflect on the effect our refinement and polish has on the reliability of our witnesses and how the drafting techniques we have used to sculpt and buff have come about.

Direct Speech

It is a rule of practice rather than a rule of evidence that a witness should recount the actual words used in a conversation if he or she is able to do so.⁶ This rule of practice elevates direct speech above indirect speech.

The distinction between the two can be illustrated as follows:

[direct speech]: The Reverend said: ‘The cannibal ate the convict.’

[indirect speech]: The Reverend said that the cannibal ate the convict.

It can be immediately appreciated that indirect speech is the more instinctual way of writing when recounting past events and giving evidence orally in direct speech can be as strained and as unnatural as written recollections. Alan Sullivan QC in his Bar Course paper on written evidence discussing direct speech recollects a judge asking the witness to imagine a bubble coming out of a cartoon character’s mouth and asking them to pretend they are in a similar situation when giving evidence.⁷

The preference for direct speech in affidavits reflects the distinction in Latin between oratio recta (from recutus meaning straight, direct, or honest) and oratia obliqua (meaning indirect).⁸

In LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd⁹ Barrett J referred to the preference in conversations for ipsissima verba (the very words).

Expressing more than just a preference, JC Bryson QC was of the view that if the affidavit had to be in the first person as prescribed by the court rules, it followed that the speech of a conversation must itself be direct too.¹⁰

In Queensland, the Hon James Henry wrote in his paper on drafting effective affidavits, ‘Use direct speech. Indirect speech creates ambiguity. It makes it difficult to discern whether content is a statement of witnessed fact or is only opinion.’¹¹

Words to the effect

Whether preferred, prescribed, or required by court rules, the use of direct speech leaves the drafter of written statements or affidavits with the conundrum of what to do when the witness does not have a clear recollection of the exact words spoken. As noted in Cross on Evidence:¹²

…it is hard to see why witnesses must be compelled into uttering untruths on oath by giving a form of words in direct speech with which they are not happy and which they cannot actually recollect in preference to their own words in indirect speech, so long as mere conclusions are avoided.

No sensible lawyer would disagree with the logic of that statement. However, the author then goes on to cite the observation in Commonwealth v Riley¹³ that the practice is probably now disregarded as often as it is followed. That is certainly not the case with respect to written evidence in New South Wales, where practitioners were taught until this year to resolve the problem by prefacing direct speech with a qualifier on the witness’s memory.

The Law of Affidavits notes: ‘…a witness should not be required to ‘manufacture’ a conversation in order to use direct speech. This latter problem can be addressed by the qualifications of ‘best recollection’ and ‘effect of the words used.’’¹⁴

As a practical drafting tip, The Law of Affidavits advises qualifying written recollections of conversations with ‘In this affidavit I will refer to conversations and to the best of my recollection will set out the effect of the words said’ and making the statement once in the introductory paragraphs of the affidavit to avoid repetition.¹⁵

In his paper, Alan Sullivan QC notes the familiar drafting technique of using an expression such as that suggested in The Law of Affidavits before proceeding to set out the conversation in direct speech.¹⁶ He then writes:

We all know how artificial this is and how difficult it is for a lay person to adjust and accommodate this mode of giving evidence [in direct speech].

Nevertheless, unrepentantly I have on many occasions drafted or settled affidavits whereby the relevant conversations are put into direct speech. I think it is the safer and correct course to pursue.

The judicial scepticism of refined and polished conversations that do not reflect a witness’s actual memory has been remedied somewhat by requiring contentious evidence of conversations to be given orally, often supplemented pre-trial by an outline of what is anticipated to be said. This is reflected in Federal Court practice notes, though it has not caught on in New South Wales.¹⁷

Both Mr Sullivan’s paper and The Law of Affidavits reflect a long-held orthodoxy in New South Wales that qualified direct speech in written form was the rule, not the exception, notwithstanding the artificiality and the observations in texts such as Cross on Evidence. But was it confined to our jurisdiction?

A New South Wales practice?

While the emergence of the prefatory phrase ‘words to the effect’ as a way of qualifying direct speech is lost to time, research indicates its use near the inception of our State judicial system. In an 1810 Supreme Court case arising out of the Rum Rebellion,¹⁸ Judge Advocate Bent recorded witnesses recollecting that another Judge Advocate, Charles Grimes, ‘said words to the following effect ‘this is not an indictment but a charge and we will proceed in our own way.’’

In contradistinction, an 1824 case involving escaped convicts cannibalising each other in Tasmania¹⁹ recorded a Reverend Connolly addressing a crowd at the foot of a scaffold about to hang Alexander Pearce as saying ‘words to the following effect’, followed by indirect speech.²⁰

While these cases are considerably more interesting than the workaday affidavits of our equity lawyers, and were reconciling evidence given viva voce in the criminal context, they at the least reveal a New South Wales practice from as far back as 1810 tolerating qualifications on recollections followed by direct speech that was not necessarily followed elsewhere.

In his paper ‘Affidavit Evidence,’²¹ the Hon Alan Robertson writes: ‘I should also mention the question of direct speech. Interstate practitioners I think regard the New South Wales practice as strange, the New South Wales practice being, to the extent possible, that direct speech should be used. I think you will find quite a few judges who would tend to reject evidence given in indirect speech in an affidavit, in part because indirect speech is a very close relation to statements of conclusion rather than primary facts.’

It has been noted recently that the Victorians²² do not follow the practice of prefacing direct speech with ‘words to the effect’ and that the practice is one peculiar to New South Wales. Alan Sullivan QC notes that from his personal and anecdotal experience, judges in NSW are more keen on observing the ‘direct speech’ rule than judges in other jurisdictions.

While this accords with my experience too, a search on ‘words to the effect’ in legal research databases reveals widespread use of that phrase followed by quoted direct speech in Queensland, South Australian and Western Australian jurisdictions; and as noted above, from the Queensland perspective, the Hon James Henry is of the opinion that direct speech ought to be used to avoid ambiguity and conclusion. Perhaps then it is the Victorians who are the outliers.

If it was, it is no longer

The ‘flaws in what has continued to be the usual practice in New South Wales’:²³ were addressed this year by Justice Jackman in Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd.24 His Honour’s observations drew on many of the cases and observations above. Yet rather than maintain the fiction that direct speech can be qualified, his Honour said at [127]:

The practice of witnesses and lawyers working up a version of a conversation in direct speech (whether or not prefaced by the phrase ‘in words to the following effect’) from the witness’s actual memory merely of the substance or gist of what was said is logically, ethically and grammatically wrong. It is logically wrong because it reverses the logical process of deriving the meaning or substance of what was said from the actual words which were spoken; 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. It could not be said that this practice is allied to an iron sense of principle.

Even after the decision of Justice Jackman in the Federal Court, it might have been thought that it nevertheless remained the safer and correct course to pursue in New South Wales. That may have been true, at least until the decision of Gan v Xie²⁵ when the Court of Appeal agreed with Justice Jackman and quoted him ipsissima verba.²⁶

Therefore, whatever the historical sources of the drafting technique, and whether it existed as some New South Wales quirk or not, it must now go the way of Rum Rebellions and cannibalism: always questionable, now disapproved of, and ultimately something to be blamed, if at all possible, on solicitors. BN

^ENDNOTES

^{1 ‘Truth and the Law’ Sir Maurice Byers Lecture 2011 Hon James Spigelman AC QC; Written Evidence: Witness Statements and Affidavits as an alternative to oral evidence (NSW Bar Association Practice Course) August 2015, Alan Sullivan QC [4.21].}

^{2 Concrete Pty Ltd v Parramatta Design (2006) 229 CLR 577.}

^{3 At 635.}

^{4 [2023] FCA 381.}

^{5 [2023] NSWCA 163.}

^{6 Commonwealth of Australia v Riley (1987) 5 FCR 8 at 34.}

^{7 [7.24] Written Evidence: Witness Statements and Affidavits as an alternative to oral evidence (NSW Bar Association Practice Course) August 2015.}

^{8 ‘Affidavits’ JC Bryson QC (1999) Australian Bar Review 166 at 171 and with thanks to Kevin Tang for his Latin.}

^{9 (2001) 53 NSWLR 21 at [8].}

^{10 ‘Affidavits’ JC Bryson QC (supra) at 171.}

^{11 ‘The Affidavit as a Tool of Persuasion: Drafting an Effective Affidavit and Using an Affidavit Effectively’ [2015] QldJSchol 40 at [43].}

^{12 Page 476, JD Heydon (7th ed 2004).}

^{13 (supra) at 34.}

^{14 The Law of Affidavits (2013, Federation Press, Levingston J) page 76.}

^{15 The Law of Affidavits (supra) page 68, though he also notes that if the precise words are recalled the conversation can be noted as an exception to the general statement.}

^{16 Written Evidence: Witness Statements and Affidavits as an alternative to oral evidence (NSW Bar Association Practice Course) August 2015.}

^{17 [11.5] Central Practice Note: National Court Framework and Case Management (CPN-1) [9.1] Employment and Industrial Relations Practice Note (E&IR-1).}

^{18 Crossley v Johnston, McArthur & Ors [1810] NSWSupC4; [1810] NSWKR4.}

^{19 R v Pearce [1824] TASSupC 11.}

^{20 It appears the court reporting of this case had been outsourced to the Hobart Town Gazette and was probably not in the words used by Peder CJ himself.}

^{21 [2014] FedJSchol 3.}

^{22 Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd (supra) at [122].}

^{23 Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd (supra) at [121].}

^{24 (supra).}

^{25 (supra).}

^{26 At [119].}

^{"It has been noted Victorians do not follow the practice of prefacing direct speech with ‘words to the effect’ and that the practice is one peculiar to New South Wales."}