The recent judgment of Jackman J in Kanes Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 (Kane’s Hire), approved by the NSWCA,³ put a stake through the heart of the orthodox practice in New South Wales of putting affidavit evidence of conversations in the form of ‘direct speech’. The judgment reflects a welcomed respect for the forensic significance of the psychology of memory. It highlights the need for the psychology of memory to further guide the practice and ethics of witness preparation. This article is a collaboration between two barristers and two academics in the field of memory.

‘Direct Speech’ evidence of conversations

‘Direct speech’ refers to evidence of the exact words spoken in a conversation and is generally reproduced in quotation marks. This is to be contrasted with indirect speech (in the sense of a paraphrase of a conversation), for which no quotation marks are used because the evidence does not purport to describe the actual words spoken.

In 2020, it was observed by Bromwich J that the ‘practice of direct speech recorded in affidavits and in witness statements being prefaced by ‘words to the effect’ has become ubiquitous’.⁴ That it should have become ubiquitous is curious, because forceful statements have been made that there is no rule of admissibility or practice that mandates direct speech evidence of a conversation⁵ and it is obviously ‘erroneous’ that ‘people can accurately recall conversations in direct speech, long after their occurrence’.⁶ The perceived allure of direct speech was threefold. Firstly, evidence not in direct speech was often rejected by courts.⁷ Secondly, the ostensible precision of direct speech created an impression of reliability and judicial statements indicated that the more ‘general and imprecise form’ of indirect speech could adversely affect the ‘weight’ of the evidence.⁸ Thirdly, in NSW, it was once considered that direct speech was mandated by the now repealed rule 2(1) of Part 38 of the Supreme Court Rules 1970 (NSW).⁹

The decision in Kane’s Hire

In Kane’s Hire, Jackman J at [127] condemned the ‘usual practice’ of presenting conversation evidence in the form of direct speech:

‘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’.

Drawing on academic literature in the field of psychology relating to a dominant theory of memory known as ‘Fuzzy Trace Theory’,¹⁰ his Honour at [129] concluded that ‘the following general principles apply to the form of evidence of conversations:

(1) The form of the evidence should correspond to the nature of the actual memory the witness has of the conversation. There is no reason in the abstract to think that evidence in direct speech is more reliable or credible than evidence in indirect speech, or vice versa.

(2) If the witness remembers only the gist or substance of what was said, and not the precise words, then the evidence should be given in indirect speech (also known as reported speech), in terms which reflect the witness’s actual memory.

(3) If the witness claims to remember particular words or phrases being used, then those words or phrases should be put in quotation marks to indicate that they are verbatim quotations, even if the evidence is otherwise given in indirect speech.

(4) If the witness genuinely claims to recall the actual words used in a conversation, then the evidence should be given in direct speech; that is, quoting the words as actually spoken…

(5) Evidence given in direct speech should not be prefaced by the phrase that the conversation occurred ‘in words to the following effect’. That expression 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.

(6) Evidence of a witness who claims to remember the exact words of a conversation, but who is found after cross examination to have exaggerated the nature and quality of his or her memory, may well suffer an adverse effect on his or her credibility (the weight of which will depend on all the circumstances). However, the inability to cross-examine in that manner a witness who gives evidence in indirect speech is not unfairly prejudicial within the meaning of s 135 of the Evidence Act 1995 (Cth)’.

The Psychology of Memory for conversation

Kane’s Hire will hopefully open the courts and the profession up to more engagement with academic research on the psychology of memory. The ‘need for a constant dialogue between the lawyer and the psychologist is apparent. Our objective must be wherever possible to ensure that the perceived truth is the real truth’.¹¹

Set out below is a very brief overview of some relevant principles on the psychology of memory, with which the judgment of Jackman J sits comfortably:

(1) ‘Memory’ is often conceptualised as a multi-stage process involving the encoding, storage and retrieval of information.¹² Encoding is the phase in which a mental representation of information is formed in memory. Storage is the retention of encoded material over time, involving the re-organisation of neural connections in the brain.¹³ Retrieval is the process of accessing stored information.¹⁴

(2) ‘Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how an event was experienced, conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval’.¹⁵

(3) ‘Fuzzy Trace Theory’ is a dominant memory theory that can be used to inform our understanding of memory for conversations.¹⁶ It posits that people create and store two types of memory representations: verbatim traces and gist traces. Verbatim traces represent precise, detailed information. These traces are literal, capturing the exact perceived wording and specific details of an event or conversation. On the other hand, gist traces capture the core or essential meaning of information. They are less concerned with precise details and instead focus on the overarching message, idea or concept. Gist traces represent a more abstract or summarised version or impression of the information. ‘Verbatim traces may be thought of as representations of rememberers’ ‘‘actual’’ experience, and gist traces may be thought of as representations of rememberers’ ‘‘understanding’’ of their experience’.¹⁷ Fuzzy Trace Theory posits that when people encounter and process information (including conversations), they simultaneously create both verbatim and gist traces.

(4) ‘Conversational memory is astoundingly poor’.¹⁸ ‘Studies have shown that memory for the exact wording of a sentence is extremely poor, while memory for gist information is slightly better’.¹⁹ The general fragility of memory for conversations is already well known to the law.²⁰ As Jackman J observes at [128], ‘in general terms gist memory tends to be more stable and durable over time than verbatim memory’. ‘Researchers attribute the poorer memory for surface structure, relative to gist information, to the fact that in the context of everyday life, verbatim information is not as important as its meaning’^.21 However, people may be able to accurately recall specific words or phrases (‘expressions’), particularly when the identical expressions are used repeatedly, people are motivated to rehearse the exact expressions²², people have a strongly aligned association with the expressions²³, the expressions are particularly unique and memorable²⁴, or where people have made a detailed contemporaneous note of the conversation.²⁵

(5) If only a gist trace is accessible by a person, then regardless of whether the person is asked for a conversational account in direct speech, indirect speech, or a conclusion, the conversational account will be based on the gist trace. That is, any attempted verbatim account is a reconstruction from the gist trace, and not necessarily from the exact words used in the conversation.

(6) It is generally accepted that there are different and often competing drives of remembering:²⁶ a drive for correspondence to efficiently retain accurate details, and a drive for coherence of memory with aligned current goals, self-beliefs, and ‘schemas’ (being ‘organised knowledge structures that include beliefs and expectations concerning the nature, characteristics, and behaviours or functions of objects, people, and events’).²⁷ Recent memory, in which details are important, is biased towards correspondence at the expense of coherence. Long term memory, in which gist is usually more important than the details,is then biased towards coherence at the expense of correspondence.²⁸

(7) Memory is often innocently (but falsely) reconstructed to fill in forgotten details, and thereby facilitate comprehensive narratives necessary for conversing, storytelling and evidence giving^.29

(8) When witnesses encounter information about an event after it has occurred, they often incorporate this information into their original memories for the event. This well-documented phenomenon is known as the misinformation effect.³⁰ Sources of post-event information include leading questions, the media, and co-witness dealings.³¹ In a forensic setting, ‘the most troubling aspect of memory … may be its vulnerability to suggestion’.³²

(9) Many conventional circumstances and practices in witness preparation may innocently corrupt memory. Even ‘neutral non-suggestive questioning’ can elevate false memory.³³ Further, false memory can be ‘unintentionally strengthened and consolidated through sincere recognition and repetition by the witness’³⁴. For example, ‘repeated interrogations increase a witness’s public commitment to a particular memory’; ‘answering repeated questions also forces a witness to continually think about his memories, which studies have shown to similarly increase one’s confidence in the accuracy of his memories (without improving actual accuracy)’; ‘a simple instruction for the witness to mentally rehearse his account and to anticipate possible questions that a cross-examiner might ask [can be] sufficient to markedly elevate the witness’s confidence in his memory’; and if nothing has ‘happened to correspondingly increase the accuracy of the witness’s memory, the result [can be] an increase in overconfidence’.³⁵

(10) Notwithstanding the universality of memory reconstruction, research suggests that people may have little introspective insight into their own memory capabilities and memory operations. They are often ‘unaware of their unawareness’.³⁶ Accordingly, witnesses may have a deep commitment to the truth of their distorted recollection.

(11) ‘It must be appreciated that even the most scrupulously honest and sincere witness cannot be presumed to be entirely accurate…. It is crucial for the various participants in the legal system to gain greater understanding of the magnitude of the potential for distortion in witness memory and of the many³⁷ and varied sources of memory distortion for events relevant to a wide variety of litigated events’.³⁸

(12) As to the psychology surrounding the assessment of the reliability of stated memory:

• Precision. Specificity, clarity, and coherence of recollection are intuitively taken as indicators of accuracy.³⁹ Consequently, direct speech evidence of conversations is likely to be more persuasive than general ‘gist’ conversational evidence (regardless of its underlying accuracy). However, specificity, clarity and coherence are not necessarily an indication of reliability, especially where there has been a significant passage of time since the recalled event.⁴⁰

• Consistency. Consistency of evidence is frequently used as another intuitive commonsense indicator of reliability.⁴¹ However, it is another intuition which is contradicted by the research. Indeed, ‘many studies have found that false memories can be more consistent than true memories’.⁴²

• Confidence. ‘Many outside of the research community consider an eyewitness’s level of subjective confidence to be a valid indicator of his or her accuracy. Contrary to this popular belief, a person’s level of subjective confidence is not a valid indicator of his or her accuracy. Most scientific studies have found the [confidence and accuracy relationship] to be relatively weak or nonexistent; in fact, this is one of the most consistent findings in the memory research literature’.⁴³

Kane’s Hire: ambiguities and elaboration

An ambiguity arises from the statement of principles in Kane’s Hire extracted above:

• Jackman J affirmed that the form of evidence should correspond to the ‘nature of the actual memory’, and endorsed the Fuzzy Trace Theory of memory. That theory posits that memory of conversation may be stored as ‘gist’, and that ‘gist’ memory traces may constitute abstract and summarised impressions of conversation;

• Notwithstanding the affirmation that evidence should correspond with ‘the nature of actual memory’, Jackman J only explicitly endorsed ‘indirect speech’ as an alternative to ‘direct speech’. His Honour noted at [129(2)] that ‘indirect speech’ was also known as ‘reported speech’, but it is not clear whether ‘indirect speech’ was implicitly confined to specific paraphrasing, or possibly extended to more general and conclusory impressions of conversations.

The authors of this article suggest that general and conclusory impressions of conversations should also be prima facie admissible (subject to conventional exclusions and weight), and suggest the following further principles to guide the presentation and admissibility of such evidence:

(1) The ‘gist’ of conversations might be remembered with different degrees of specificity and abstraction. At one end of the spectrum, gist memories might be in the form of paraphrased ‘indirect speech’ (which has a high level of specificity). At the other end of the spectrum, gist memories might be in the form of general conclusory impressions (which have a high level of abstraction from the actual conversation): e.g., ‘we agreed I would buy the car’. In the law of evidence, an ‘opinion’ is ‘an inference from observed and communicable data’.⁴⁴ Although ‘the distinction between evidence of fact and evidence of opinion is difficult to draw’,⁴⁵ there presumably must be a threshold of abstraction beyond which the form of ‘gist’ memory of a conversation would be characterised as evidence of ‘opinion’ about the conversation rather than evidence of ‘fact’ (reflecting that the memory represents an ‘inference’ from the originally observed conversation). However, the characterisation of the evidence as opinion should present no significant complexity or difficulty for the admissibility of ‘gist’ evidence, because any such opinion may be admissible under the ‘lay opinion’ exception in s 78 of the Evidence Act 1995 (NSW) (Act),⁴⁶ subject to (2) to (5) below. Section 78 permits the admission of lay opinion when it is ‘based’ on the person’s perception of a matter or event, and when evidence of the opinion is necessary’ to obtain an ‘adequate account or understanding’ of that person’s perception. Admission under s 78 might be justified as follows:

• The ‘opinion’ (comprising the general conclusory impression of the conversation) was historically ‘based’ on the witness’s original perception of the conversation. That conclusion is not negatived by the subsequent dissolution of the ‘verbatim’ memory traces of that original perception (leaving the gist trace of the general conclusory impression of the conversation as the only identified surviving memory trace);

• If it is established that the ‘verbatim’ and other more specific ‘gist’ memory traces of the perception of the conversation have dissolved, then evidence of the ‘opinion’ (comprising the general conclusory ‘gist’ memory of the conversation) is ‘necessary’ to obtain an ‘adequate account’ of the person’s perception of the conversation. This is because that opinion is the only surviving memory trace of that perception: ‘…if his memory of the precise words fails him, his impression of their net meaning is not forbidden by the opinion rule’.⁴⁷

(2) The scope of admissible ‘gist’ conversational evidence would be confined by the limits of relevance under s 55 of the Act and the condition in s 78 of the Act that the lay opinion be necessary to obtain an account of the witness’s perception of ‘the matter or event’. The relevant ‘matter or event’ for conversational evidence would typically be the ‘terms of the conversation’.⁴⁸ With respect to evidence of the terms of a conversation, ‘gist’ evidence has been admitted as to a witness’s ‘understanding or impression as to the net meaning of the words’;⁴⁹ the ‘overall impression of the meaning and effect of the relevant communication’;⁵⁰ the provision of ‘a more complete impression of the conversation’ beyond the verbatim recollection;⁵¹ and the ‘substance and aim of…discussions’.⁵² On the other hand, ‘gist’ evidence has been ruled inadmissible to prove what the speaker ‘intended to convey’ by the use of particular words spoken (because the tribunal of fact can draw its own inference, and the witness’s speculation is not relevant);⁵³ and ‘what was in another person’s mind’ in the course of a conversation (because such an opinion is not based on what the witness ‘saw, heard or otherwise perceived’).⁵⁴

"The prescription of a practice for presenting conversational evidence in affidavit form, naturally begs the question as to the appropriate practice for interviewing witnesses about conversations."

(4) Although the mere fact of the abstracted and conclusory nature of the ‘gist’ evidence does not automatically render the evidence irrelevant or outside the scope of s 78 of the Act, there must be scope for a submission that the degree of conclusory abstraction is so great that the ‘gist’ evidence is not relevant under s 55 of the Act; does not give an ‘adequate’ account or understanding of the conversation and therefore falls outside s 78 of the Act; or should be excluded under the general discretion in s 135 of the Act.⁵⁵ These matters may give rise to very contestable questions. However, an unduly strict approach to exclusion may overly diminish the practical significance of the principle that conversational evidence should correspond to the ‘nature of the actual memory’, potentially exclude the best and only evidence of a conversation, and possibly create incentives for presenting conversation evidence with artificial and undue precision.

(5) Even if gist evidence of an abstracted and conclusory nature were admitted, the degree of conclusory abstraction might be highly material to the probative value of the evidence.⁵⁶ The cautionary statement from Watson v Foxman in the specific context of proving misleading or deceptive conduct remains generally salient: ‘Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances’.⁵⁷ However, as Jackman J at [125] observed: ‘whether the evidence of spoken words is sufficiently precise to enable the court to be reasonably satisfied that the words spoken were in fact misleading is plainly a question of degree, not a demand for unattainable perfection’.

(6) The ‘actual memory’ of a conversation might be a combination of ‘verbatim’ and ‘gist’ memory, and ‘gist’ memory might have varying degrees of specificity and abstraction. If general impression evidence is given, specify that more precise recollection is not retained: e.g., ‘I don’t recall the actual words or the gist of any particular statement in that conversation. I have an overall recollection of the conversation that [#]’.

The unsettled question in Kane’s Hire as to the scope of admissible ‘gist’ evidence can be demonstrated by reference to a hypothetical oral agreement concerning the sale of a car. ‘Gist’ evidence might be presented in the following forms:

• ‘My best recollection is that I offered to sell the car for $10,000. John agreed if I included the trailer. I said that was okay but I needed John to pay by Monday. John agreed with that.’; or

• ‘My strong impression was that we agreed that I would sell the car and trailer, although I can’t recall the exact conversation or the basis for my impression’.

The first example is conventional paraphrased ‘indirect speech’ and would be admissible. The second example pushes ‘gist’ beyond specific paraphrased indirect speech, and into the realm of abstract conclusory impressions. Pre-Kane’s Hire, this would have been objectionable.⁵⁸ However, on the principles outlined immediately above, this evidence may now be prima facie admissible under s 78 of the Act, subject to the principles in (2)-(5) above.

Further research required on the psychology of memory of conversations ‘There are few studies which systematically examine variables that may affect the accuracy of conversational recall’.59 There has been a ‘‘call to arms’ for memory researchers to join in the investigation of issues of memory specific to statements and conversations’.⁶⁰

The authors of this article join that call. It is crucial that the process of justice be informed by a comprehensive understanding of: (a) what factors affect the reliability of conversational memory; and (b) what forensic processes promote (and compromise) the reliable preparation and presentation of conversational evidence;

Further reform of legal rules and practice

Recognition of the profound vulnerability of conversational memory to distortion strongly supports the repudiation of the ubiquitous practice of ‘direct speech’ evidence. But it also demands careful consideration of the following issues relating to conversational evidence: (a) ethical and professional standards for witness preparation; (b) waiver of privilege in relation to witness preparation, to facilitate the investigation (and deterrence) of truth-corrupting practices; (c) a Code of Conduct (equivalent to the Expert Code of Conduct).

Suggested practice for evidence preparation

The prescription of a practice for presenting conversational evidence in affidavit form, naturally begs the question as to the appropriate practice for interviewing witnesses about conversations. We set out below our suggestions:⁶¹

(1) Establish Rapport: Begin the interview by establishing a comfortable and nonthreatening atmosphere. Building rapport with the witness can help them feel more at ease and open to sharing information.

(2) Mental Reinstatement of Context: This technique involves instructing the witness to mentally revisit the context and environment in which the event or conversation took place. It is based on the encoding specificity principle,⁶² which provides that it is easier to retrieve information when you are in the same context in which you encoded it.

Witnesses are encouraged to remember sensory details, emotions, and thoughts they experienced at the time. This process helps reactivate the memory traces associated with the event. Taking a witness through

The prescription of a practice for presenting conversational evidence in affidavit form, naturally begs the question as to the appropriate practice for interviewing witnesses about conversations. a chronology of documents and events is consistent with this technique (but also carries risk of memory distortion).

(3) Report Everything: Explicitly transfer control to the witness and instruct the witness to report everything they can remember, even seemingly insignificant details, to avoid filtering out potentially important information during the interview. Ask open-ended questions that encourage witnesses to provide a complete account of the event. Open-ended questions help witnesses recall information without external influence. Avoid leading questions which can detrimentally affect witness memory. The interviewer should allow for long pauses and avoid interrupting the witness.

(4) Specific instructions on conversational memory. The authors suggest instructions to this effect: ‘When I ask you about your memory of a conversation, please provide as much detail of the conversation as you can. We store memories of conversations in different ways. Sometimes we recall exact words. Sometimes, we don’t recall exact words, but we remember the gist of particular statements made. Sometimes, we just remember our overall impressions of what was discussed. Sometimes, our memories of conversations are a mixture of all these things. Sometimes, we forget altogether. No one expects you to have a perfect recall of the actual words which were spoken in a conversation. If there are gaps in your memory, that is okay. Try to avoid filling the gaps with your guesses and try to limit your responses to details which you actually remember’. If a witness gives an abstracted conclusory description of a conversation, open ended follow-up questions are appropriate to investigate and exhaust the detail of recollection: e.g., ‘You referred to your impression that [#]. Do you recall the basis for that impression?’, ‘Do you recall the actual words used by any person in the conversation?’, ‘Even if you don’t recall the actual words, do you recall the effect or gist of any particular statements made during the conversation?’

(5) ‘Subject matter X’. If it is critical to address whether subject X was discussed at the meeting, exhaust memory with open questions first, and only then ask: ‘Do you recall whether or not X was discussed at the meeting?’ (But understand, this carries significant risk of memory distortion. The authors recommend that a best practice would be to expressly note in the affidavit when a recollection was triggered by a leading question: e.g., ‘At the time of preparing this affidavit, I at first had no recollection of this part of the conversation. An independent recollection was refreshed when I was asked the question: ‘…..?’’).

The authors of this article intend to collaborate further in investigation of the matters raised in this article. Comments on this article are welcomed. BN

^ENDNOTES

^{1 Barrister, 5 Wentworth, hugh.stowe@5wentworth.com.}

^{2 Barrister, 5 Wentworth, alex.vial@5wentworth.com.}

^{3 Gan v Xie [2023] NSWCA 163 (Gan), [119], [126], [127]}

^{4 Commonwealth DPP v The Country Care Group Pty Ltd (Ruling No 1) [2020] FCA 1670 (Country Care Group), [6] for commentary on the practice, see J Bryson QC, ‘How to Draft an Affidavit’ (1985) 1 Australian Bar Review 250 at 252.}

^{5 Cth of Aust v Riley And Others (1984) 5 FCR 8, 34; R v Noble (2002) 1 Qd R 432 (Noble), [20]; LMI v Baulderstone [2001] NSWSC 688 (LMI), [2]; Hampson v Hampson [2010] NSWCA 359 (Hampson), [40]; Country Care Group, [11].}

^{6 Noble, supra, [20].}

^{7 E.g., Re Auzhair Supplies Pty Ltd [2010] NSWSC 1339 (Auzhair Supplies); ACN 078 592 908 Pty Ltd v Access RnD Tax Solutions Pty Ltd [2016] NSWSC 59, [32].}

^{8 Hampson, supra, at [40]; La Trobe Capital and Mortgage Corporation Ltd v Hay Property Consultants Pty Ltd [2011] FCAFC 4 (La Trobe), [46]}

^{9 Bryson, supra, 171.}

^{10 Brainerd & Reyna, ‘Fuzzy-Trace Theory and False Memory’, (2002) 11(5) Current Directions in Psychological Science, 164–169.}

^{11 Hon Justice Peter McClellan, ‘Who is telling the truth? Psychology, common sense and the law’, (2006) 80 ALJ 655.}

^{12 Melton, ‘Implications of short-term memory for a general theory of memory’, (1963) 2(1), Journal of verbal Learning and verbal Behavior, 1-21.}

^{13 Nadel et al., ‘Memory formation, consolidation and transformation’, (2012) 36 Neuroscience and Biobehavioral Reviews 1640-1645.}

^{14 Tulving & Thomson, ‘Encoding specificity and retrieval processes in episodic memory’, (1973) 80(5) Psychological Review 352-373.}

^{15 Australian Psychological Society, Guidelines Relating to Recovered Memories (2000)}

^{16 Reyna et al, ‘How fuzzy-trace theory predicts true and false memories for words, sentences, and narratives’, (2016) 5(1) Journal of applied research in memory and cognition 1-9.}

^{17 Brainerd & Reyna, ‘Fuzzy-trace theory and memory development’, (2000) 24(4) Developmental Review 396-439.}

^{18 Duke & al, ‘A picture’s worth a thousand words: conversational versus eyewitness testimony in criminal convictions’, (2007) 44 American Criminal Law Review 1, 5.}

^{19 Brown-Schmidt & Benjamin, ‘How We Remember Conversation: Implications in Legal Settings’ (2018) 5(2) Policy Insights from the Behavioral and Brain Sciences 187.}

^{20 Watson v Foxman (1995) 49 NSWLR 315 (Watson), 318 –319.}

^{21 Duke & al, (2007) supra.}

^{22 Rubin, ‘Very Long-Term Memory for Prose and Verse’(1977) 16(5) Journal of Verbal Learning and Verbal Behavior 611.}

^{23 Rosenberg, ‘The Recall of Verbal Material Accompanying Semantically Well-Integrated and Semantically Poorly-Integrated Sentences’ (1969) 8(6) Journal of Verbal Learning and Verbal Behavior 732.}

^{24 Gibbs, ‘Spilling the Beans on Understanding and Memory for Idioms in Conversation. (1980) 8(2) Memory & Cognition 149.}

^{25 Risko & Gilbert, ‘Cognitive Offloading’ (2016) 20(9) Trends in Cognitive Sciences 676.}

^{26 Conway et al., ‘The Self and Autobiographical Memory: Correspondence and Coherence’ (2004) 22(5) Social Cognition 491.}

^{27 Davis & Loftus, ‘Internal and External Sources of Misinformation in Adult Witness Testimony’, in Chapter 7, Handbook of Eyewitness Psychology at 196.}

^{28 Conway, ‘Memory and the Self’ (2005) 53(4) Journal of Memory and Language 594.}

^{29 Roediger & Marsh, ‘False Memory’ (2009) 4(8). Scholarpedia 3858.}

^{30 Loftus, ‘Planting misinformation in the human mind: A 30-year investigation of the malleability of memory’, (2005) 12(4) Learning & Memory 361-366.}

^{31 Wright & Davies, ‘Eyewitness testimony’, in FT Durso (ed) (1999), Handbook of Applied Cognition (pp. 789-818).}

^{32 McLellan, supra.}

^{33 Duke & al, supra as above.}

^{34 Brainerd & Reyna (2002), supra.}

^{35 Brainerd & Reyna (2002), supra.}

^{36 Nisbett & Wilson, ‘Telling More Than We Can Know: Verbal Reports on Mental Processes’ (1977) 84(3) Psychological Review 231, at 255.}

^{37 McClellan, supra.}

^{38 Davis & Loftus, supra, at 224.}

^{39 Simon, In Doubt: The Psychology of the Criminal Justice Process (2012).}

^{40 Roediger and Marsh, supra, 3858.}

^{41 Fisher et al,‘The Relation between Consistency and Accuracy of Eyewitness Testimony: Legal versus Cognitive Explanations’, in Bull, & al (eds) (2009) Handbook of Psychology of Investigative Interviewing 121.}

^{42 Duke & al, supra, at 21.}

^{43 Krug, ‘The Relationship Between Confidence and Accuracy: Current Thoughts of the Literature and a New Area of Research’, (2007) 3 Applied Psychol.Crim. Just 1, 31.}

^{44 Lithgow City Council v Jackson 244 CLR 352, [10].}

^{45 La Trobe, supra, [44].}

^{46 Gan, supra, [120]; see also La Trobe, supra, [45]; Connex, supra, [14].}

^{47 Connex, supra, [14], [27].}

^{48 ACCC v BlueScope Steel Limited (No 3) (BlueScope) [2021] FCA 1147, [831].}

^{49 Connex, supra, [14].}

^{50 BlueScope, supra, [68]; Connex,supra.}

^{51 BlueScope, supra, [68].}

^{52 ACCC v Yazaki Corp (No 2) [2015] FCA 1304, [61]-[63].}

^{53 BlueScope, supra, [835], [838].}

^{54 BlueScope, supra, [27], [838].}

^{55 LMI, supra, [9]; see also Connex, supra, [28].}

^{56 Hampson, supra, [40]; LMI, supra, [9].}

^{57 Supra, 318 –319.}

^{58 Auzhair Supplies , supra, [11]; Heydon, Cross on Evidence (online edition), [17145].}

^{59 Duke & al, supra.}

^{60 David & Friedman, ‘Memory for conversation: The orphan child of witness memory researchers’, Chapter 1 in Toglia and ors (eds), ‘The handbook of eyewitness psychology, Vol. 1. Memory for events’, at 41.}

^{61 Fisher et al, ‘Enhancing enhanced eyewitness memory: Refining the cognitive interview’, (1987) Journal of Police Science & Administration.}

^{62 Tulving & Thomson, supra, 352.}