Demeanour assessments of terrible witnesses

Anthony Cheshire SC

I recently asked a good friend of mine why he had taken his dogs for a walk on his own rather than inviting me along. He responded, without any embarrassment, that he had some good podcasts he wanted to catch up on. Now while I have a wide breadth of conversation, I had to accept that I cannot compete with the depth that a podcast can deliver.

In recent years, the death of the physical book has been much reported. It is clear that, although there is still demand for physical books, much of the space previously occupied by them has been replaced by audio books, e-readers and podcasts. Although I share the frustration of many that the ‘younger generation’ would apparently rather spend their time on social media than on reading a book, I suspect the reality is far more complicated.

I have continued with physical books, but supplemented by an e-reader and podcasts; and it is from podcasts that I have learned more, at least factually, and obtained more conversation topics.

I am currently listening to a new podcast, The Sound, which is an investigation into Havana Syndrome. This describes physical symptoms first reported by staff at the US Embassy in Havana following exposure to noise, apparently caused by a sonic weapon. Now I am only half-way through the series, but there is at least one school of thought that the noise was in fact the call of Indies shorttailed crickets and the reaction was a mass psychogenic event, having no physical origin. There are many similar examples. For instance, over four months in 2014, 240 pre-teen and teenage girls were hospitalised in the remote town of El Carmen de Bolívar in northern Colombia with symptoms including fainting spells, shortness of breath, severe headaches, numb hands, nausea and convulsions. This is thought to have been a mass psychogenic event following media reports of adverse reactions to a recently administered human papillomavirus vaccine.

Similarly, in 1962 there was an outbreak of laughing contagion in a girls’ missionary boarding school in Tanzania accompanied by other symptoms including fainting, crying and agitation, which also appears to have been a mass psychogenic event. Earlier in my career at the bar, I defended a case (rather unsuccessfully) brought on behalf of a young woman who had been involved in a very low impact rear road accident that had caused a psychiatric reaction that had led to her becoming an inpatient at a psychiatric institution with a broad spectrum of physical complaints. There was no doubt that there was no physical origin for her symptoms, but the psychiatric reaction and resultant somatisation were bizarre and extreme.

As these examples demonstrate, the brain can react to stress in strange and complicated ways. Gail Furness SC, the Inspector of the Independent Commission against Corruption, recently presented her Special Report 2023/1: Audit of the welfare of witnesses and other people involved in ICAC investigations. Being involved in an ICAC investigation can be very stressful and can impact negatively upon personal and commercial relationships, even for those who are not categorised as persons of interest; and there have been a number of suicides. A range of protective measures were recommended in the report, but most were dependent upon a person first being identified as ‘at risk’. As recognised in the report, that has limitations since ‘one should not expect Commission officers to be experts in the identification, diagnosis, or treatment of mental health conditions’.

The courts have repeatedly stressed the limitations on assessing credibility and reliability by reference to the demeanour of witnesses, but there has been little detailed discussion, except at a high or general level, of the potential impact of psychological factors on such assessments. It is rare to have expert evidence as to the potential impact of a witness’s psychological health upon the quality of his or her evidence. Indeed the impact of psychological factors may not emerge until the witness is faced with the artificial environment of a court hearing and an aggressive cross-examination. By that time, it is likely to be too late to seek expert evidence to explain what otherwise might appear to be evidence suggestive of a lack of credibility or reliability. The court is then left in the difficult position of attempting to assess whether an unsatisfactory presentation is the product of dishonesty or unreliability on the one hand or psychological factors on the other (or possibly a combination of both). To adapt Furness’s comment and apply it to a court setting: ‘one should not expect [judges] to be experts in the identification, diagnosis, or treatment of mental health conditions’.

Given that psychological symptoms can be difficult to identify and can present in strange and unexpected ways, this presents a further significant limitation on the assessment of demeanour. The worst witness I have ever had was completely unable to answer a simple question as to whether he had filled in and signed a document. He was warned by the judicial officer that he might be found in contempt and I was asked to speak to him and explain the seriousness of the situation. My exhortations made little difference, but fortunately the independent and objective facts were in his favour. In other words, the witness was truthful insofar as he was able to express himself, but there was clearly some form of psychological block that restricted him from answering even simple questions. In the absence of corroborative evidence, I have no doubt that a demeanour assessment would have led to his evidence being rejected.

To similar effect, I have seen many witnesses laughing inappropriately, but was this the behaviour of an arrogant untruthful witness or the nervous psychological reaction of a truthful witness under stress? In DVO16 v Minister for Immigration and Border Protection (2021) 388 ALR 389; [2021] HCA 12, the High Court discussed problems arising from the use of interpreters. Edelman J observed at [54] (omitting footnotes):

The errors that can arise from interpretation are not limited to the consequences of incorrect interpretation. They extend also to the pernicious effect of adverse credibility assessments based upon matters of demeanour and impression. A former member of the Refugee Review Tribunal has correctly described how ‘[t]he utilisation of demeanour, without more, to substantiate adverse credibility findings is ‘fraught with dangers’’...These problems for credibility assessments based, in part, upon impression and demeanour are compounded by cultural issues that may not be known to the decisionmaker such as the impoliteness in some cultures of direct responses to questions or the extreme discomfort involved in discussion of some topics in particular cultures. All of these considerations compound the usual problems of assessment of demeanour, particularly in the context of evidence in an atmosphere that is very commonly one of high pressure and which also can commonly concern highly distressing matters…

The remaining justices recorded with approval at [6]:

Professor Wigmore noted the ‘peculiarity’ of language that ‘the most perfect system of signs, the most richly developed language, leads only to a partial comprehension…whose degree of completeness depends upon the nature of the subject treated, and the acquaintance of the hearer with the mental and moral character of the speaker’…

I rather enjoy the thought of a judge attempting to assess ‘the mental and moral character’ of a witness to determine whether he or she is in a position fully to assess the witness’s evidence: where did you go to school; what grades did you get; what religion are you; do you attend church… (although this sounds rather like some of the early conversations I had soon after arriving in Sydney as people tried to assess my ‘character’)? When one puts in even some of the potential differences between judge and witness, such as cultural, regional and educational, there may be overlap but there will rarely be identity of common ground, even in a case where all of the witnesses give their evidence in English.

In the context of interpreted evidence, Kunc J observed in Haiye Developments Pty Ltd v The Commercial Business Centre Pty Ltd [2022] NSWSC 937 at [304] in assessing whether a witness was truthful: His evidence was given in Mandarin from China by video link. It was interpreted into English in the court room in Sydney. There were occasional interruptions to the signal and imperfections in sound. As the trier of fact I do not speak Mandarin and have no relevant knowledge or experience of Chinese culture. These issues of language and culture mean the Court cannot safely rely on demeanour insofar as in other contexts it might be of some assistance in assessing whether a witness appears to be telling (or trying to tell) the truth. The Court must take the evidence as it finds it and weigh it against contemporaneous material and inherent probability.

To similar effect, Parker J observed in Wickham Hill Investment Pty Ltd v Ding [2019] NSWSC 631 at [170]:

…it is relevant that most of the witnesses were Chinese nationals who gave evidence in Mandarin…the Court will exercise great caution, and generally resist, making findings based on the demeanour of witnesses in such cases because the Court is not equipped to make such assessments when the language and culture of the witnesses is so far outside the experience of the Court.

Even where a cultural difference between a judge and a witness is recognised, any attempt by the judge to apply his or her particular experience of that culture risks an assessment based upon generalities, prejudice and cliché. Further, it risks falling foul of rules of procedural fairness. As Macfarlan JA said in Yebdoo v Holmewood [2021] NSWCA 119 (albeit in dissent in the result) at [40]:

The recourse by judges and juries to matters that are within the knowledge and experience of ordinary people is to be distinguished from the impermissible use by a judge, in making factual findings, of his or her special expertise or experience in non-legal fields such as medicine (see Strinic v Singh (2009) 74 NSWLR 419;[2009] NSWCA 15 especially at [59]).

As explained by Beazley JA in Strinic v Singh at [64]: A party is not afforded procedural fairness where a trial judge makes findings of fact based upon that judge’s own purported knowledge or understanding of matters that do not form part of the evidence. Taking the issue identified by Edelman J in DVO16 as set out above, even if the decision-maker is aware of particular ‘cultural issues…such as the impoliteness in some cultures of direct responses to questions or the extreme discomfort involved in discussion of some topics in particular cultures’, he or she may breach rules of procedural fairness by applying that knowledge.

There is an added difficulty with psychological factors, namely that whereas cultural, regional and educational factors can be identified fairly simply by direct evidence from the witness, this is not the case with psychological factors. These are usually unrecognised and unidentified (often including by the witness); and even if identified, the precise nature and extent will probably be unknown (and potentially unknowable) and its effects are likely to be largely unpredictable, at least to the untrained, and can be bizarre and extreme. The question of whether a witness is giving apparently unsatisfactory evidence deliberately or as a result of some psychological factor will usually, in the absence of other evidence, be largely unknowable. Given the infinite variety of cultural, regional, educational, psychological and other factors in each human being, to apply the dicta of Kunc and Parker JJ above: ‘the Court cannot safely rely on demeanour’ and ‘the Court is not equipped to make such assessments’. It is important to differentiate between demeanour and the content of the evidence.

Thus, there is no issue with using internal inconsistencies, inherent probabilities or established untruths to reject a witness’s evidence. While there may be cases that depend solely upon which of two equally apparently credible and reliable witnesses is to be preferred when there is no corroborative evidence either way, they are rare and, where they exist, they may well fail. As Campbell JA, said in Brown v NSW Trustee and Guardian [2012] NSWCA 431 at [52]:

To satisfy an onus of proof on the balance of probabilities is not simply a matter of asking whether the evidence supporting that conclusion has greater weight than any opposing evidence. As well, both under the common law and also under s 140 Evidence Act 1995, the evidence must be enough to enable the court to feel actual persuasion that a particular fact is so… It is perfectly possible for there to be a scrap of evidence that favours one contention, and no countervailing evidence, but for the judge to not regard the scrap of evidence as enough to persuade him or her that the contention is correct.

Further, as Kunc J observed in Leung v Fordyce [2019] NSWSC 18 at [82]:

It may be the case that some issues cannot be resolved on the evidence at the Court’s disposal particularly in situations where ‘evidence distilled into the word of one witness against the word of one or more other witnesses’: Aytul Ak‐Tankiz v Ferat Ak & Ramazan Ak [2014] NSWSC 1044 at [187] per Robb J.

If a demeanour assessment is to have any place in decision-making, which of itself is doubtful, perhaps the position can best be described using an analogy with a Jones v Dunkel inference: a finding of fact should not be made based purely upon a demeanour assessment, but the court can use a demeanour assessment to draw with greater confidence an inference available from other evidence. BN

Anthony Cheshire SC