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 [2006] 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.
[79] 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.
[80] 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 [1983] 2 AC 464.’
[81] 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 [2001] NSWSC 688; (2001) 53 NSWLR 31 at [8] – [9].
[82] 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.
[83] 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).
[84] 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.
[85] 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.
But with the commencement of the Evidence Act 2008 that provision is repealed, and Part 4.6 provides for affidavit evidence in some instances.
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.
I think it's strange that Heydon et al claim that the only relevant exclusionary provision in the UEL is s135. What about s76 (the opinion rule?) Surely, a non-exact account of a conversation is an opinion about what was actually said? That doesn't mean that such accounts are inadmissible, but rather that the principal issue is whether it falls within an exception to the opinion rule.The most relevant exception to the opinion rule is s78, which would cover witnesses who directly heard the conversation and need to use an opinion to express what they heard. That would seem to allow both the second and third categories of evidence discussed in these cases, but only to the extent that the witness was unable to recall exactly what was said or to say something close to that.Two other potentially relevant exceptions are s77 (if the opinion is relevant regardless of its accuracy, e.g. to explain its effect on the opinion-holder) and s81 (for evidence of or relating to admissions.) (Hard to see how s79 would help.)It's true that s135 will still have to be surmounted, but surely s78 is the main issue?
Barrett J didn't think so in LMI v Baulderstone [2001] NSWSC 688, where opinion didn't even rate a mention.I suppose to treat inexact recollections of a conversation as evidence of opinion opens up difficult questions about what is properly considered evidence of fact and what is evidence of opinion. Simpson J (McClellan CJ at CL and Rothman J agreeing) said in R v Drollett [2005] NSWCCA 356 [at 53], 'Much has been said in recent times about the dividing line between evidence of opinion and evidence of fact. In essence, it seems that the better view is that there is no dividing line, or at least no clear dividing line'.The NSW Court of Criminal Appeal in Drollett advocated a case-by-case approach that assessed evidence on its own merits.Looked at from one perspective almost anything a witness says could be considered opinion. But nobody gains from a court system where witnesses are forbidden from stating their own date of birth because such assertions rely upon hearsay, or can't refer to a Mitsubishi Magna as a 'car' because the opinion rule requires that they first inspect the working of the engine to ensure that it provides motive force to the wheels.There are obvious forensic disdvantages when the trier of fact is denied the ability to draw their own conclusions from the words used, and opposing counsel are restricted in their cross-examination on other potentially intended meanings. There's good reason to exclude such evidence in the exercise of the court's discretion. But to exclude the evidence as inadmissible unless it satisfies 77, 78 or 81 would probably deny a trier of fact highly probative and reliable evidence.
I think it's strange that Heydon et al claim that the only relevant exclusionary provision in the UEL is s135. What about s76 (the opinion rule?) Surely, a non-exact account of a conversation is an opinion about what was actually said? That doesn't mean that such accounts are inadmissible, but rather that the principal issue is whether it falls within an exception to the opinion rule.The most relevant exception to the opinion rule is s78, which would cover witnesses who directly heard the conversation and need to use an opinion to express what they heard. That would seem to allow both the second and third categories of evidence discussed in these cases, but only to the extent that the witness was unable to recall exactly what was said or to say something close to that.Two other potentially relevant exceptions are s77 (if the opinion is relevant regardless of its accuracy, e.g. to explain its effect on the opinion-holder) and s81 (for evidence of or relating to admissions.) (Hard to see how s79 would help.)It's true that s135 will still have to be surmounted, but surely s78 is the main issue?
Barrett J didn't think so in LMI v Baulderstone [2001] NSWSC 688, where opinion didn't even rate a mention.I suppose to treat inexact recollections of a conversation as evidence of opinion opens up difficult questions about what is properly considered evidence of fact and what is evidence of opinion. Simpson J (McClellan CJ at CL and Rothman J agreeing) said in R v Drollett [2005] NSWCCA 356 [at 53], 'Much has been said in recent times about the dividing line between evidence of opinion and evidence of fact. In essence, it seems that the better view is that there is no dividing line, or at least no clear dividing line'.The NSW Court of Criminal Appeal in Drollett advocated a case-by-case approach that assessed evidence on its own merits.Looked at from one perspective almost anything a witness says could be considered opinion. But nobody gains from a court system where witnesses are forbidden from stating their own date of birth because such assertions rely upon hearsay, or can't refer to a Mitsubishi Magna as a 'car' because the opinion rule requires that they first inspect the working of the engine to ensure that it provides motive force to the wheels.There are obvious forensic disdvantages when the trier of fact is denied the ability to draw their own conclusions from the words used, and opposing counsel are restricted in their cross-examination on other potentially intended meanings. There's good reason to exclude such evidence in the exercise of the court's discretion. But to exclude the evidence as inadmissible unless it satisfies 77, 78 or 81 would probably deny a trier of fact highly probative and reliable evidence.
You're right that it's tricky to distinguish fact and opinion. Personally, I think Kirby J stated the right approach in Smith: that it depends on the possibility of error. That approach certainly doesn't bar all witnesses from saying what they remember, but it may bar witnesses from giving vague descriptions of conversations from some time ago. That's hardly highly probative and reliable evidence!Anyway, s78 is hardly an onerous test for admissibility. Indeed, it seems like the same test that the common law uses and (presumably) that is also required by s135. But why not work through the applicable rules systematically? By the way, the UEL is 'a court system where witnesses are forbidden from stating their own date of birth because such assertions rely upon hearsay': see Marsden v Amalgamated Television Services [2000] NSWSC 55. And that's appropriate, e.g. in cases where a person's exact age is crucial, such as alleged child sex abuse cases. Of course, there are usually hearsay exceptions that permit such statements to be made, such as the first-hand hearsay exceptions or, in that case, s73(1)(c). Again, why bend the exclusionary rule or dismiss it's applicability out-of-hand, just to fit an intuition about what should be admitted, rather than just letting the exceptions do their job?
Jeremy, I hadn't even considered the opinion rule. It's a really interesting concept.I think the difficulty is what is meant by 'opinion', because the Act unhelpfully doesn't define it.Taken to its logical extreme, all evidence given by a witness is opinion, because remembering involves reconstructing that witness's version of what occurred. There are two articles in the 2006 edition of the Australian Law Journal that dealt with this idea: ‘Who is telling the truth? Psychology, common sense and the law’ by Justice Peter McClellan, and ‘Problems with fact-finding’ by Justice David Ipp.I thought the distinction Justice McClellan raised between ‘real’ and ‘perceived’ truth very interesting. In that dichotomy, any evidence provided by a person from memory is perceived truth and hence an opinion. In contrast, something like video footage might be real truth, and not an opinion. (Though there might still be room to argue what it truly shows!)I wonder if considering indirect evidence of conversation as opinion, and deciding whether to include it or not on that basis, might be more confusing than helpful for the evidence-gatekeeper.To pick up on what you say about Kirby J's observations, if the focus is not so much on the opinion itself, but rather the reliability of the opinion, then the court has something a bit more tangible to consider.Obviously some recollections will be so vague and imprecise as to be no help at all. Others will be quite detailed. Maybe s 165 unreliability warnings are appropriate? Or s 135 or 136 exclusions or restrictions?I reckon the opinion rule comes into play when a witness wants to give evidence along the lines of “In my opinion what he said was…” (which is the point I made above), and more importantly, when they want to say something like, “In my opinion what they meant by that was…”I don't think it only applies then — that would be far too narrow — but I guess the reason the courts eschewed the opinion rule generally in the indirect-speech cases is because to say that any memory is opinion is true, but not terribly helpful.Just to come back to the original point where I was wondering about how this might apply in affidavits, s 172 provides that affidavits may be based on knowledge, belief or information.Now that Magistrates' Court Act 1989 s 129 is repealed, is there any statutory provision that expressly says all evidence should be given orally unless an exception applies — like Evidence Act Part 4.6 or Family Violence Protection Act s 55 and 66? It's almost such a basic principle that it goes without saying!
It is frustrating that 'opinion' isn't defined, but it is juxtaposed with 'fact'. The question is whether a witness is merely relaying 'facts' that the witness remembers perceiving or whether the witness's testimony includes a significant amount of interpretation (either at the perception, memory or communication stages.) This will depend on each witness, e.g. a witness who reconstructs a conversation based in part on recollections of how she felt when the words were said, or how others reacted, or by imagining how the way a particular issue would have been raised, is surely giving an opinion. I take your point that this is may be an overly complex and not always pertinent analysis, but it still seems to me that s78 provides a much clearer test for dealing with such conversations than s135 and the common law.On affidavits, I don't think s172 adds much, because it is limited to affidavits about documents or things, not people. It's clearly an exception to the hearsay and opinion rules (amongst others), but I think it has a pretty narrow scope.Otherwise, isn't the hearsay rule itself the source of the requirement of orality? It doesn't expressly require oral testimony, but it does ban (with significant exceptions) all of the alternatives! I guess there may be room to argue that there are some non-oral alternatives that are 'made… in the course of giving evidence in the proceedings in which evidence of the previous representation is sought to be adduced'. Would that cover affidavits? Hmmmm. This should be obvious, but none of the annotations seem to address this.Anyway, without the hearsay rule, i.e. in FVPA hearings, there's no requirement of orality (unless one can be found in the requirement of natural justice, or perhaps the Charter's fair hearing right.)
There's a lot of good stuff in that Ipp article, but one particular line has stayed with me:”Fact-finding is labour on the factory floor of the judicial system.”Great imagery, and so true.
You're right that it's tricky to distinguish fact and opinion. Personally, I think Kirby J stated the right approach in Smith: that it depends on the possibility of error. That approach certainly doesn't bar all witnesses from saying what they remember, but it may bar witnesses from giving vague descriptions of conversations from some time ago. That's hardly highly probative and reliable evidence!Anyway, s78 is hardly an onerous test for admissibility. Indeed, it seems like the same test that the common law uses and (presumably) that is also required by s135. But why not work through the applicable rules systematically? By the way, the UEL is 'a court system where witnesses are forbidden from stating their own date of birth because such assertions rely upon hearsay': see Marsden v Amalgamated Television Services [2000] NSWSC 55. And that's appropriate, e.g. in cases where a person's exact age is crucial, such as alleged child sex abuse cases. Of course, there are usually hearsay exceptions that permit such statements to be made, such as the first-hand hearsay exceptions or, in that case, s73(1)(c). Again, why bend the exclusionary rule or dismiss it's applicability out-of-hand, just to fit an intuition about what should be admitted, rather than just letting the exceptions do their job?
Jeremy, I hadn't even considered the opinion rule. It's a really interesting concept.I think the difficulty is what is meant by 'opinion', because the Act unhelpfully doesn't define it.Taken to its logical extreme, all evidence given by a witness is opinion, because remembering involves reconstructing that witness's version of what occurred. There are two articles in the 2006 edition of the Australian Law Journal that dealt with this idea: ‘Who is telling the truth? Psychology, common sense and the law’ by Justice Peter McClellan, and ‘Problems with fact-finding’ by Justice David Ipp.I thought the distinction Justice McClellan raised between ‘real’ and ‘perceived’ truth very interesting. In that dichotomy, any evidence provided by a person from memory is perceived truth and hence an opinion. In contrast, something like video footage might be real truth, and not an opinion. (Though there might still be room to argue what it truly shows!)I wonder if considering indirect evidence of conversation as opinion, and deciding whether to include it or not on that basis, might be more confusing than helpful for the evidence-gatekeeper.To pick up on what you say about Kirby J's observations, if the focus is not so much on the opinion itself, but rather the reliability of the opinion, then the court has something a bit more tangible to consider.Obviously some recollections will be so vague and imprecise as to be no help at all. Others will be quite detailed. Maybe s 165 unreliability warnings are appropriate? Or s 135 or 136 exclusions or restrictions?I reckon the opinion rule comes into play when a witness wants to give evidence along the lines of \”In my opinion what he said was…\” (which is the point I made above), and more importantly, when they want to say something like, \”In my opinion what they meant by that was…\”I don't think it only applies then — that would be far too narrow — but I guess the reason the courts eschewed the opinion rule generally in the indirect-speech cases is because to say that any memory is opinion is true, but not terribly helpful.Just to come back to the original point where I was wondering about how this might apply in affidavits, s 172 provides that affidavits may be based on knowledge, belief or information.Now that Magistrates' Court Act 1989 s 129 is repealed, is there any statutory provision that expressly says all evidence should be given orally unless an exception applies — like Evidence Act Part 4.6 or Family Violence Protection Act s 55 and 66? It's almost such a basic principle that it goes without saying!
It is frustrating that 'opinion' isn't defined, but it is juxtaposed with 'fact'. The question is whether a witness is merely relaying 'facts' that the witness remembers perceiving or whether the witness's testimony includes a significant amount of interpretation (either at the perception, memory or communication stages.) This will depend on each witness, e.g. a witness who reconstructs a conversation based in part on recollections of how she felt when the words were said, or how others reacted, or by imagining how the way a particular issue would have been raised, is surely giving an opinion. I take your point that this is may be an overly complex and not always pertinent analysis, but it still seems to me that s78 provides a much clearer test for dealing with such conversations than s135 and the common law.On affidavits, I don't think s172 adds much, because it is limited to affidavits about documents or things, not people. It's clearly an exception to the hearsay and opinion rules (amongst others), but I think it has a pretty narrow scope.Otherwise, isn't the hearsay rule itself the source of the requirement of orality? It doesn't expressly require oral testimony, but it does ban (with significant exceptions) all of the alternatives! I guess there may be room to argue that there are some non-oral alternatives that are 'made… in the course of giving evidence in the proceedings in which evidence of the previous representation is sought to be adduced'. Would that cover affidavits? Hmmmm. This should be obvious, but none of the annotations seem to address this.Anyway, without the hearsay rule, i.e. in FVPA hearings, there's no requirement of orality (unless one can be found in the requirement of natural justice, or perhaps the Charter's fair hearing right.)
There's a lot of good stuff in that Ipp article, but one particular line has stayed with me:\”Fact-finding is labour on the factory floor of the judicial system.\”Great imagery, and so true.