Edit: Jeremy Gans was kind enough to point out to us (in his comment on When is lay opinion necessary) that the NSW Court of Appeal suggested in Jackson v Lithgow City Council that the Evidence Act 1995 (NSW) should not be interpreted so narrowly that a witness would be prevented from giving the ‘gist’ of a conversation unless they could demonstrate they were unable to recount the exact words used.
Basten JA [at 63]:
63 The submissions did not seek to make good that last proposition. It gives rise to a question, not addressed in argument, as to whether the exclusion of opinion evidence found in s 76 of the Evidence Act was intended to exclude the kinds of inference and impression which would have been admissible under the general law, so that their continued admissibility depends upon the operation of the exceptions. If the exclusionary rule were intended to have such a comprehensive effect, it would be necessary to give a broad construction to, for example, s 78, so as to avoid the exclusion of evidence of impression and inference without which much testimony would become an unhelpful artefact. Even giving s 78 a broad operation might not properly resolve the matter. The recounting of a conversation commencing, “she then said words to the following effect …” would only be admissible once the proponent of the evidence demonstrated the impossibility (or perhaps the impracticability) of repeating word for word what had been said. It seems unlikely that the structure of the Evidence Act (stating a rule of general exclusion, followed by exceptions) was intended to have such an impractical effect.
Basten JA’s remarks were not essential to the deciding of the case, and so are not conclusive on the subject.
We mentioned last year a couple of cases that say witnesses may give evidence of indirect speech when they can’t recall the exact words of a conversation.
I learnt last week of a case that says the principle applies for evidence given by affidavit as well.
In Hamilton-Smith v George  FCA 1551 Besanko J considered an appeal dealing with rejection of an affidavit that didn’t directly recount conversation but instead gave a summary of it.
 In theory, evidence of a conversation may be given in any one of three forms, namely, by recounting the actual words used by the parties to the conversation, or by recounting the substance or effect of what was said, or by recounting the witness’s conclusions as to the effect of the conversation. At common law, evidence of the conversation given in the first form is admissible and evidence of the conversation given in the third form is not. At common law, evidence in the second form is routinely admitted. Often a witness will be asked if he or she can remember the actual words used and if (as is often the case) they are not able to, they are invited to recount the conversation in terms of the substance or effect of what was said. When I use the word ‘effect’ here, I mean the effect of what was said, not the witness’s mere conclusions or impressions of the conversation.
 In Commonwealth of Australia v Riley (1987) 5 FCR 8, the Full Court of this Court said, albeit in the context of the Extradition (Foreign States) Act 1966 (Cth) (at 34):
‘Counsel submitted that there were two other categories of material which should also be disregarded: evidence of conversations which is not in the form of direct speech and statements of conclusions of witnesses. We disagree. Section 26(1)(a) of the Extradition (Foreign States) Act 1966 deals with the form of evidence in a proceeding under the Act namely:
“a document, duly authenticated, that purports to set out testimony given on oath, or declared or affirmed to be true, by a person in a foreign state is admissible as evidence of the matter stated in the testimony”.
That provision is wide enough to authorise the proof of the substance of a conversation by a narrative using indirect speech. There is nothing in the Treaty to limit the application of that provision in proceedings to which the Treaty applies; Article XI(3) merely requires the transmission of “such evidence, as according to the laws of the requested state, would justify his trial or committal for trial …”. The provision deals only with the sufficiency, not the form, of evidence. The rule that evidence of conversations shall be given in direct speech is, in Australia, a rule of practice rather than of law; a practice that is probably now disregarded as often as it is followed. To apply to affidavits prepared in another country the rules of mere practice of our own courts would be substantially to diminish the utility of the Act; cf R v Governor of Pentonville Prison; Ex parte Passingham  2 AC 464.’
 In J D Heydon, Cross on Evidence (7th ed, 2004) page 476, the following passage appears (footnotes omitted):
‘The limits of one restriction on the form of testimony should be noted. Witnesses are commonly interrupted as they endeavour to recount conversations in indirect speech, and urged to give the actual words used. This is a counsel of virtue, but it is questionable whether it is a rule of law. A witness may give the witness’s best recollection of the substance, effect or purport of what was said, even though the exact words cannot be recollected, and the witness may also recount the impression made on the witness by whatever words were used. If so, 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. “The rule that evidence of conversations shall be given in direct speech is, in Australia a rule of practice rather than of law; a practice that is probably now disregarded as often as it is followed”. This is particularly so where the conversations took place a long time ago. Similarly, there is no provision in the Cth and NSW: Evidence Acts 1995 or the Tas: Evidence Act 2001 which makes inadmissible evidence of a conversation given in indirect speech, though the possibility of discretionary rejection under s 135 is available.’
See also, LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd  NSWSC 688; (2001) 53 NSWLR 31 at  – .
 In my opinion, by and large the relevant paragraphs fall within the second form referred to above. It would appear that the Federal Magistrate considered that the paragraphs fell within the third form (see his reference to a ‘summary of the conversation’) and, in so doing, in my respectful opinion, he erred. No doubt there appear to be one or two objectionable passages in the relevant paragraphs and I refer, for example, to the reference to the respondent bragging. Furthermore, the evidence is clearly only admissible against the respondent and is not admissible to prove Mr Macks’ state of mind. Subject to those considerations, I think the evidence in the relevant paragraphs falls within the second form identified above and the only question is whether it should have been excluded because the appellant had not established by express evidence that Mr Gawronski could not give the evidence in direct speech. It would seem that that was not the basis upon which the Federal Magistrate excluded the evidence but it is a matter that needs to be considered.
 In my opinion, there is a rule of practice at common law that requires a witness to recount the actual words used in a conversation if he or she is able to do that: Commonwealth of Australia v Riley (supra); LMI Australasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (supra); J H Wigmore, 3 Wigmore on Evidence SS766 (Chadbourn rev 1970). If the witness is unable to recall the actual words used, he or she can give evidence of the substance or effect of what was said. A witness might say he or she cannot remember the actual words used. I think that as a matter of practice it is also open to the Court to infer that that is the case. I would be disposed to draw that inference in the case of the relevant paragraphs in Mr Gawronski’s affidavit bearing in mind the lapse of time between the conversation and the swearing of the affidavit, the apparent length and complexity of the conversation and the fact that an actual word used is from time to time identified by quotation marks. However, I do not need to finally determine the point because I think the evidence is admissible by reason of the provisions of the Evidence Act 1995 (Cth).
 Under the Evidence Act 1995 (Cth) evidence which is relevant is admissible subject to any exclusionary provision of the Act: s 56. The evidence in paragraphs 13.1 to 13.5 inclusive of Mr Gawronski’s affidavit is relevant. The only possibly relevant exclusionary provision is s 135 and in my opinion there is no question of the exclusion of the evidence under that section.
 In my opinion, subject to the matters I have mentioned, the Federal Magistrate erred in excluding paragraphs 13.1 to 13.5 inclusive of Mr Gawronski’s affidavit on the basis upon which he did.
Evidence by affidavit is not a common feature of summary criminal cases, because of s 129 of the Magistrates’ Court Act 1989. Generally, that section used to require witnesses in the Magistrates’ Court to give evidence on oath.
Additionally, affidavit evidence can be provided under provisions such as:
- Criminal Procedure Act 2009 s 399 and Magistrates’ Court Criminal Procedure Rules 2009 r 13(5)
- Family Violence Act 2009 s 55 and 66
- Magistrates’ Court Act 1989 s 75 (application for search warrants)
In all of those cases, it seems it’s preferable for the deponent to recount conversation in direct speech if possible, but there’s no bar to admissibility of the affidavit if they can’t, for that reason alone.