I turned up to run a trial recently in which orders had been made for witness statements by consent, and witness statements had been filed and served. The trial judge simply advised he would not stand for written evidence regardless of what some other judge had ordered, and required the witnesses to give their evidence orally. Luckily the witness statement was actually my client’s evidence, not something dreamt up for him by a lawyer, and he was able to give oral evidence successfully.
There are those who rail against affidavits, or at least their over-use. I can understand why the judges do it. My understanding of a matter before and after a conference with my client — something I pursue avidly — is a very different thing. The railings are well summed up by Justice Pembroke who had unusual cause to rail. At his Honour’s welcome in April, he was described like this:
‘Your Honour was an economical barrister in the best sense of the term. Your Honour’s arguments were always well structured, concise and dealt only with the points that were worth arguing.’
This judge was forced to read a 6,657 paragraph affidavit which he described as ‘gallimaufry’. (There seems to be a lot of confused jumbles passing through the NSW Supreme Court this year: of the seven decisions published on Austlii in which the word ‘gallimaufry’ is found, three post-date mid-April and emanate from that Court. An unrepresented litigant seems to have reintroduced the word into the judicial vocabulary by a submission recorded by Justice McCallum: ‘Mr Rahman contends, among other things, that the orders previously made by me are evidence of my mind and intellect “in a state of gallimaufry.”‘)
His Honour ordered that evidence be given orally, repeating the quip attributed to Lord Buckmaster that ‘the truth sometimes leaks out of an affidavit – like water from the bottom of a well’. In full, his Honour’s comments were:
’22. … Affidavits have an important function and serve a useful purpose. But they are not necessarily always the best means of leading evidence-in-chief. Where there are disputed issues of fact involving oral representations and conversations, affidavit evidence can sometimes be an unsatisfactory medium for leading the evidence-in-chief.
23 It is well known that eminent jurists with unparalleled trial experience have expressed misgivings about the elicitation of evidence-in-chief by affidavits in cases whose success or failure depends on disputed representations and conversations. A colourful but apposite aphorism frequently invoked by Hon T E F Hughes QC, and attributed to Lord Buckmaster, is that “the truth sometimes leaks out of an affidavit – like water from the bottom of a well”.
24 Justice Emmett expressed similar reservations and elaborated on the difficulties in Practical Litigation in the Federal Court of Australia – Affidavits (2001) 20 Australian Bar Review 28:
Where evidence is controversial, particularly where credibility of the witness is involved, the adducing of the evidence in written form is often undesirable and can be quite unfair. An honest witness, albeit nervous, in unfamiliar and overbearing surroundings, will be better able to defend in cross-examination evidence given by the witness in his or her own words. With the very best of intentions a lawyer who settles an affidavit or a witness statement will invariably reduce the language of the witness to the lawyer’s own language. That may entail changes in meaning and emphasis that, although not intended, may expose a witness to unnecessary difficulties in the course of cross-examination. On the other hand, a dishonest witness will always be assisted by having evidence put into credible form by a lawyer. Where an assessment of credit is required, a judge will have a much better prospect of assessing a witness who gives evidence-in-chief orally rather than being exposed to cross-examination immediately upon entering the witness box.
25 In 1996, Lord Woolf wrote in the Access to Justice Report, Final Report (HMSO), 1996 at , referring to witness statements but with equal application to affidavits:
Witness statements have ceased to be the authentic account of the lay witness; instead they have become an elaborate, costly branch of legal drafting.
26 In 1975, the New South Wales Law Reform Commission, published Working Paper 14, (1975) – Procedure: Common Law Pleadings, containing the observation at paragraph 7.3 that “affidavit evidence is said (and with justification) to be more the evidence of the legal advisor than the witness”.
27 A common thread in the commentary is that the studied reconstruction, and formulation in writing, of contentious conversations and oral communications in language that is usually settled and refined by lawyers, can sometimes be unreliable and unintentionally misleading. In an appropriate case, a more reliable touchstone of the truth is the witness’ frank and honest recollection of the communication, given orally in the witness box, without the formality of an affidavit or the supervising hand of an interested lawyer. Even if the recollection is spare, and perhaps because it is so, it will very often be more credible. And the process of leading the evidence in chief orally may well be fairer to the witness.
28 There is also another factor. In an appropriate case, oral evidence-in-chief can advance the interests of the efficient administration of justice. If evidence in chief of contentious conversations and representations is adduced orally, the evidence will usually be more economical and more confined than it would otherwise have been. Affidavits, on the other hand, can consume inordinate amounts of time in their making, in ruling on objections to them and in their patient deconstruction by cross-examination. As this case demonstrates.’
- Evidence paper, part 3 (hearsay introduction)
- Evidence paper, part 4 (hearsay basics)
- NSW judge refuses to admit affidavit adopting contents of another’s affidavit
- That goddam dictum of Denning about file notes and conflicts of evidence
- How the other side’s barrister can see your witness’s proof of evidence