Acknowledgments
This paper AND many examples are quotations or based on or adopted from: Best Practice Guide 01/2009-2011. “Preparing Witness Statements for Use in Civil Cases” Western Australian Bar Association.
Introduction
1. Whilst witness statements or affidavits of evidence in chief (which for ease I’ll call statements in this paper) have long been a tool used in some jurisdictions, for example the Family Court, Federal Circuit Court and QCAT, they are relatively new animals in our state courts.
2. The modern trend in civil litigation with complex issues is for courts to require the exchange and filing of statements or affidavits of a witnesses evidence in chief evidence. This trend was characterised as the “most far-reaching innovation as regards the leading of evidence”.1
3. The objective of witness statements is “to improve the efficiency of trials”.2 But the innovation has drawn much debate about the effect of evidence, especially in cases involving credit issues. Parties have the opportunity to marshall these critical documents in a calm and considered environment outside the courtroom. No doubt it saves court time if statements are prepared properly and ethically.
4. The efficacy and integrity of this litigation trend depends to a great degree upon lawyers adhering to proper standards to present a proper case for their client.
5. This paper examines the process and techniques of preparing witness statements and affidavits of evidence in chief:
- To present evidence that is frank and free from influence;
- To confine a dispute to the real issues in dispute;
- To support a case for which there is a proper foundation;
- To refrain from advancing a case for a collateral purpose;
- To exhibit relevant material; and
- To manage challenges that may confront the practitioner.
Proof of Evidence
6. Development of a statement is a continuous process throughout the conduct of the proceeding.
7. The precursor to a statement will be proofs of evidence, that is a clear, concise and logical statement of the relevant testimony that a witness can give, expressed in the language of the witness. The “author” of the content of a proof of evidence is the witness, not the lawyer.
8. In a nutshell, a proof of evidence, and ultimately the final statement, should be analysed and arranged to possess the following characteristics:
1. introduce the witness – name, address;
2. qualifications, Curriculum Vitae (for experts);
3. chronological narration of the facts in first person;
4. use simple language in the witnesses own words, terminology and phrases (not lawyer’s or legal language) ;
5. use headings (of material events so it is easily read and contextual);
6. number every paragraph and subparagraph. Avoid ‘dot’ points;
7. conversations should be particularised with date, time, place, parties present, and terms in direct speech (“I said in effect that … He said in effect that …”) or the effect (“I said in effect that … He said in effect that …”);
8. signed by witness under oath or affirmation.
9. The proof of evidence of each witness should be revisited and refined as the case unfolds from the initial interview, disclosure and instructions received from time to time. It should never be left to the last opportunity in a desperate dash to comply with a directions order.
10. Throughout the process, make it a disciplined habit to treat each communication with a prospective witness as a meeting for the purpose of taking a witness statement.
11. A system of continuous development of the written evidence has obvious advantages:
1. it causes the lawyer to continually consider the readiness of evidence to support the claims being made in the proceedings;
2. it results in recollections being recorded at an early stage;
3. it enables counsel to be briefed at any stage with proofs of evidence that it is expected will be given at trial relating to each witness;
4. it improves the communication of information when the conduct of a file passes to another lawyer;
5. in more complex cases, it enables proof of evidence of different witnesses at different times to be marshalled with clarity, purpose and efficiency;
6. it reduces the inefficiency and possible inconsistencies of need to speak to the same witness about the same issues on numerous occasions; and
7. it provides a valuable record which can be readily transformed into witness statements when required.
12. From inception, lawyers must employ their obligations, such as: witnesses must not be coached or influenced; the evidence of witnesses should not be discussed in the presence of other witnesses as to the same facts; third party witnesses should not be discouraged from giving evidence; and the witness statement should be recorded in the language of the witness and confined to relevant matters.
Ethical Assistance
13. A witness can be assisted in recalling matters known to the witness by being taken to contemporaneous documents or by working through the recollection of the witness of the sequence of events.
14. The witness can be asked about documents that appear to be inconsistent with the version. If the version is illogical or inconsistent with other facts independently established then put that to the witness.
15. However, a witness should not be told what another witness has said to the lawyer. For example, do not say to a witness:
“I have spoken to Paul Smith and he says that you were told by the supervisor to work on the platform”.
Instead use questions to explore evidence in a proper way. For example,
“Did you speak to anyone about working on the platform?”, “Who gave you instructions about where you should work?” and “Do you remember being given any instructions about working on the platform?”
16. The witness should not be taken through a version of events and asked whether the witness agrees with that version. For example, it is improper to ask a prospective witness “Didn’t it happen like this…?” You may ask “Do you have anything to say to a proposition that it happened like this?
17. But, the witness should not be shown a statement of another witness (or sent copies for comment) .
18. Various professional conduct rules emphasise the importance of lawyers maintaining the integrity of evidence . They prohibit:
(a) suggesting to a witness the evidence that should be given;
(b) conferring with more than one lay witness at the same time about any contentious issue relevant to evidence to be given by any of those witnesses;
(c) conferring with a witness whilst under cross examination without the consent of the cross-examiner;
(d) seeking to prevent or discourage witnesses from conferring with lawyers for other parties.
19. Consider any reasons why it would be inappropriate to take the statement. For example:
- the statement from an officer or employee of a company for whom the lawyer acts, and the statement may record matters that could give rise to personal liability on the part of the officer or employee (and the officer or employee has not obtained legal advice);
- the witness is another party to the proceedings or an officer or employee of another party;
- the witness is represented by another lawyer.
20. Lawyers should not explain the legal significance of particular evidence. For example, there may be an issue in a particular case as to whether the plaintiff relied upon a private nuisance caused by the roots of a neighbour’s tree. The witness should not be told that unless the tree is located in the neighbour’s land then the claim will not succeed. In fact, there is no reason to do so.
21. Obviously, if the witness is also a party (or an officer of a party), it will be necessary to give legal advice to the party. But do so after instructions have been taken about the facts.
22. The witness should be asked what he or she would have done if the true position had been known at the time.
23. There is no property in a witness. No prospective witness is obliged to provide a witness statement to either party.3 But never discourage the witnesses from conferring with the opposing side.
24. A witness should not be asked about confidential communications with lawyers for other parties. Legal professional privilege applies to protect confidential communications between lawyers for a party and witness.4 The privilege extends to the interview between the opposing lawyer and the witness, written communication and statement. If the witness proffers a statement taken by the opposing lawyer then decline offer, do not read it or take a copy.
25. But these issues will not prevent the witness being interviewed by the other lawyers about the same relevant evidence.
26. Always disclose to a witness or prospective witness the name of the party that the lawyer is acting for and, in general terms, the reason why the lawyer wants to speak to the witness. This is part of the duty of honesty and candour of the lawyer as an officer of the court.
27. At an appropriate stage, the witness should be told about the trial process in general terms. The witness should be told to think carefully about what is said in a statement and that it may be challenged by cross-examination.
28. The witness should be told not to discuss the evidence with any other witness until the case has been concluded.
Statement of Other Witness
29. The witness should not be told what is in other witness statements. The witness should not be shown the statement of another witness because:
1. providing the witness statement of one witness to another is a means of facilitating collusion concerning the testimony of witnesses;
2. providing the witness statement of one witness to another is likely to result in witness coaching by identifying matters with which the witness must agree or disagree;
3. a witness does not need to know the evidence of another witness in order to give complete and accurate testimony as to the matters known to that witness;
4. it is for the lawyer to identify the matters addressed in other witness statements about which a particular witness may be able to give evidence and for the lawyer to ask the witness proper questions to elicit the testimony that the witness is able to give without collusion or coaching;
5. there may be an order for witnesses out of court at trial and the process of requiring statements is to facilitate the efficient conduct of the trial, not to otherwise alter the trial process by which the evidence of a witness may be tested.
30. It is the responsibility of the lawyer to identify relevant topics and to elicit the testimony of the witness as to those topics and record the testimony in the statement. The testimony should be elicited by open questions that do not direct the witness to give a particular version of events.
31. Further, a reply statement should not state anything like: “I refer to paragraphs 1 to 3 of the statement of Michael Olivera. I categorically deny those paragraphs.”
Final Witness Statements
32. The witness statement is the formal written document containing the admissible evidence in chief required to prove or disprove the case. They are not merely proofs of evidence. They are the written testimony of the witnesses evidence in chief and must be written as such.
Organised logical structure
33. Careful consideration must be given to the important matters which are relevant to a particular witness. An overall structure for the statement should be planned with the audience in mind, namely, the trial judge, and must assist the judge to follow the evidence.
34. The statement should be arranged as a chronological narrative. In cases where the evidence does not concern a sequence of events, then the statement should be organised topically.
35. It should tell a story as a series of events or topics from the personal experience of the witness.
36. Before launching into the narrative, consider the main events in the chronology or topics. Usually these events will comprise:
- something the witness saw;
- something the witness said or heard first hand;
- something the witness did;
- the preparation, sending or receipt of a document;
- an opinion that the witness is qualified to make.
37. Use a heading of the events or topics, followed by sign posts of those events so it is easily read and contextual. For example,
Where the witness will testify about discussions made at a series of meetings sign post the evidence by a statement such as:
First Meeting
“I attended three meetings at which the turnover of the business was discussed. The first meeting was held at the Athena Coffee Shop on 10 July 2006.”
Then proceed to describe the relevant events at the first meeting known to the witness. Then state:
Second Meeting
“The second meeting was held at my office on 25 or 26 August 2006.”
38. The testimony of the witness must have the effect of replaying the witnessed events to the court so as to enable the court to see, hear and experience the events through the eyes of the witness.
39. Unless there is a particular reason why the witness’ state of mind is relevant, the statement should be an objective retelling of events personally known to the witness. There should be no commentary, argument or speculation (eg. “I think …”, or “I assumed …”). Explanations of the evidence or its significance are for counsel’s submissions.
A first person account in the language of the witness
40. A statement should not use legal terminology. It should use the personal idioms and vocabulary of the witness about people, places, events and the like.
41. Express the testimony in the first person using the active voice. Use “I” and “me” rather than “we” or “us”. It should not refer to companies or other legal entities as doing things. Companies act by their officers who give evidence of what they did and what their responsibilities were within the company.
42. Although the proof is expressed in the language of the witness, the lawyer plays an important role in arranging the order and sequence of the evidence. The proof of evidence should be logical in order, with appropriate sentence structure, punctuation and spelling.
Specific and relevant
43. The statement should not contain extraneous material. It should be as concise as circumstances allow.
44. It is not necessary for every witness to say everything that the witness knows about all the events that have some connection to the case. The testimony should be relevant to the resolution of the real issues in dispute.
45. A proof should never be repetitive. Focus upon recording a clear statement of the testimony rather than repetition. Repetition often results in slightly different versions about the same events leaving the witness vulnerable to attack in cross examination. In such cases, the witness will be exposed as being unsure about events regardless of whether the lawyer has accurately recorded the evidence. Emphasis of particular testimony and its importance is solely a matter for submissions.
46. Lawyers should not “overdraft” a statement. As observed by Lord Wolff in the Access to Justice Report in the United Kingdom:5
“Witness statements have ceased to be the authentic account of the lay witness; instead they have become an elaborate, costly branch of legal drafting.”
47. The proof must not contain irrelevant material. This is a ‘cardinal sin’. Lawyers must take great care to ensure they do not introduce ‘red herrings’ or extraneous evidence or issues that will unnecessarily distract and lengthen the proceedings.
Adverse Evidence
48. The statement must be complete and completely truthful. It should not contain a half-truth or be misleading in any respect.6
49. Whilst, there is no general obligation to inform an opposing party of adverse testimony that may assist the opposing case, the omission of such evidence where admissible may reflect poorly on credit.
50. Of course, material that is damaging or prejudicial to a particular party, but irrelevant to the issues, should never be included in the statement .7
Evidence, not a transcript of a meeting with the witness
51. A statement should never resemble a verbatim transcript of the lawyer’s meeting with a witness. The task is to extract from the conversation the pieces of relevant, admissible material and to express that material in a concise and logical way.
Evidence, not argument or commentary
52. It is not the role or responsibility of a witness to argue for the witness’s version of the events. A witness must give his or her own version of the relevant events.
53. Nevertheless, there is a tendency in practice to include argument in many different forms in statements, which should never appear in a statement. For example:
- giving explanations or commentary;
- expressing a view about the interpretation of documents;
- stating legal propositions in support of a case;
- explaining why a particular version of events is plausible or implausible.
For example: “I could not have been at the meeting because I was out of town” or “I would not have said something like that because it is not written in my diary”
Instead, say “I was in Yungaburra on 14 July 2008” or “I always take my diary with me when I meet with a client. My practice during any meeting with a client is to write in my diary any statements that I make to a client about the investments they should make.” It is then a matter for argument as to the conclusions or inferences that might be drawn from this evidence and its effect upon the credibility of accounts given by other witnesses.
54. Similarly, remarks about the meaning of words used in a document or a conversation should not be included in a statement. If the meaning as understood by the author (or speaker) or the reader (or listener) is relevant then that may be stated, but not otherwise.
Evidence, not conclusions or summaries
55. Two common problems with statements is borne out of laziness.
56. Lawyers must avoid the temptation of summarising events, and encourage the witness to give evidence about the events themselves.
For example, a statement that “At the meeting we both agreed that the price for the material would be 30% off the list price…” is a summary.
Instead, the statement should say, for example:
“At the meeting I spoke to Brian Jones about buying timber from Jones Hardware. I do not remember the precise words, but I recall the main parts of the conversation. I asked him what he would charge for a large quantity of railway sleepers. He told me that the price would be 30% off the list price for a decent quantity. I said I would ring the next day and place an order. He then told me to tell the order clerk that we had spoken about the price and the price would be 30% off list.”
57. Another problem is expressing a conclusion like “I saw the accident. The bloke in the blue car was at fault, he caused the collision.” Instead, the statement should describe the events in as much detail as the witness can recall. It is for the court to draw inferences and conclusions about causation, not the witness.
Documents
58. It is now accepted practice to prepare a trial bundle of documents. The bundle should be covered with an index assigning a document number to each document. The documents should be chronologically or topically arranged, tabbed and paginated for easy location by the judge.
59. If a trial bundle has not been prepared before witness statements then ensure all relevant documents are included in the witness statement. If a trial bundle has been prepared then the witness need only identify the document (by reference to the trial bundle).
60. It is rarely necessary to repeat the contents of documents referred to in the statement. The witness can identify a document; say when it was prepared, when it was sent or received and what was done as a result of the document.
State of mind and opinions
61. In most cases, the state of mind of the witness is not relevant.
62. Avoid, statements such as “I understood” or “I thought” or “I intended” unless state of mind is an issue. Even if state of mind is in issue then care should be taken to separate the evidence as to what the witness saw, heard and did from what the witness thought or intended.
63. More fundamentally, a witness cannot give evidence about the state of mind of another person. The witness must confine the evidence to what s/he saw, heard about another person from which the judge may draw inferences conclusions about the state of mind of that person.
Limit defined terms
64. There is a modern tendency to use too many defined terms. This enlivens two problems:
(a) firstly, definitions are usually creations of the lawyer and may be misunderstood by the witness and temper the testimony of the witness.
(b) secondly, defined terms are not used by people in their ordinary language and interrupt the flow of the narrative.
Use the correct tense
65. Usually evidence concerns past events.
66. Statements should therefore use past and not present tense. For example, in a car accident case the statement should say: “At the time of the accident there were bushes alongside the edge of the intersection” rather than “the edge of the intersection is covered by bushes.”
67. Use of present tense draws the attention away from the state of affairs at the relevant time and is strictly not relevant evidence at all.
Avoid direct speech
68. Do not use direct speech for conversations unless the witness has a word for word recollection.8
69. A witness will rarely recall the actual words used in a conversation. Sometimes a threat, or a colourful expression like “You’ll kill the pig with this franchise, everyone makes at least $50,000 in the first 6 months” might be remembered. Otherwise, take care when dealing with witnesses who readily reconstruct evidence rather than record their imperfect recollection of conversations.
70. In the case of important conversations, first establish the extent of the witness’ independent recollection of the actual words spoken and to record those words. The witness may refer to contemporaneous records. If so, the statement should establish the basis to be permitted to refresh the memory of the witness, for example:
“I do not have a specific and detailed memory of what was said at the meeting. At the time, it was my practice to take notes of important conversations in my diary, and immediately after I finished my meeting which would jog my memory. I have looked at my diary note for the 5th June 2010 (Exhibit A to this statement) and recall that at the meeting …. .”
71. The next step is to identify whether the witness has a more general recollection of the substance of the matters that were discussed and record that evidence. Only use direct speech when the witness can recall exactly what was said.
72. Otherwise, the evidence should be introduced by words describing the nature of the recollection of the witness. For example,
“I don’t recall exactly what was said but he said something like …”
or “I recall the topics that were discussed and the general thrust of the conversation but not the actual words spoken.”
73. Take care not to use these phrases like a formula. The often seen formula – “He said to me words to the effect that …” should be avoided unless it is how the witness describes the recollection.
74. The next step is to identify the extent to which the witness can recollect in more general terms what was discussed in the conversation and to record that recollection:
“We talked about whether I was interested in buying the cattle. We both talked about the price per head. We talked about a price for the cattle that was the same as the sale yard prices the previous week. Having looked at the sale records for that week I recall the price we discussed was $480 per head.”
75. If neither the actual words nor the substance is remembered then the statement should reflect that position:
“I met with Jack Murphy on 11 June 2004 at his business address. I do not recall the actual words used. He told me about the franchise. I asked him a number of questions. One thing I asked him about was about the turnover I could expect to make. In his answer he referred to a figure of $50,000 per month as an amount I could expect to make.”
76. Great care must be taken to avoid conclusions when preparing statements about conversations.
77. A conclusion such as “we discussed the turnover and he made it clear to me that I would make $50,000 in the first 6 months” does not state the evidence of the witness. The statement should set out the actual discussion.
78. If the witness only has a general recollection then the evidence should make that clear by stating:
“I recall a conversation with Jack Murphy in which the topic of the turnover I could expect to make was discussed. I can’t recall exactly what was said in the conversation. I recall the figure of $50,000 being discussed at the meeting as the turnover that could be made in the first 6 months of the franchise. I can’t recall whether I asked him whether I could expect to make $50,000 in the first 6 months and he agreed or whether he told me that was the amount that I could expect to make. I remember the amount of $50,000 being a number that was mentioned in the meeting as being the likely turnover that could be achieved in the first 6 months.”
Use temperate language
79. Rude, offensive, sexist or racist language etc should be avoided in any statement, unless they are relevant to that type of case which requires an accurate description of the words actually used on a particular occasion, for example, in relation to in a verbal assault, or race or sex discrimination.
80. Otherwise, the court room is not the place for offensive or intemperate language. Even though the statement should properly reflect the language used by the witness, remember giving evidence is a formal occasion and language that the witness would use on such an occasion should be adopted.
Verification
81. Provide the client/witness with a copy of the final draft statement as soon as possible. Ask the client/witness to sign earlier proofs after s/he has read it and considered it carefully. The final preparation of the statement should be the culmination of continuous process in the conduct of the proceeding.
82. Spend enough time with a witness going over a witness statement before it is signed. Every witness must be given an adequate opportunity to read and consider the contents of the statement. Giving the witness an opportunity to make corrections before the statement is signed.
83. The witness should be asked whether there are any particular parts that the witness does not understand. In some cases it is advisable to read the statement out loud to the witness to provide the witness with the opportunity to hear what it says.
84. The witness’ signature is the usual form of verification. Ordinarily, signed statements or executed affidavits are required. Lawyers may also include an express verification at the end of the statement:
“I have read the contents of this my witness statement and the documents referred to in it and I am satisfied that it is correct and that this is the evidence-in-chief which I wish to give at the trial of the proceeding”
85. Always exercise caution in accepting at face value the witness’ narrative of events. Where serious or improbable testimony is given the lawyer should consider whether steps could be taken to verify the statement.
86. If after preparing the statement, the lawyer is alerted to possible untruths, then s/he should check their veracity. Reliance cannot be placed upon a statement that is known to be false. A lawyer must not permit a false statement to be used in court proceedings.9
Unwilling witness
87. What if the witness will not be interviewed or will not sign the statement?
88. These circumstances may arise for friendly reasons, for example, a mutual friend who does not want to “take sides”, or a hostile witness who is actively uncooperative or recalcitrant.
89. If the witness is crucial to the case, then the evidence may be compelled by subpoena. In such cases, an appropriate order must be sought to allow oral testimony of a witness subject of subpoena. The lawyer may facilitate the efficient conduct of the trial by preparing a statement for production at trial that can stand as the evidence in chief of the witness at trial. A copy should be disclosed.
90. If the lawyer has secured a signed proof of evidence this will be useful if the witness becomes hostile, or dies, or for proving a prior inconsistent statement to rebut a suggestion of recent invention (for example, if testifying for the opposing party).
Gross Deficiencies
91. Grossly deficient witness statements are usually borne out of poor identification of the proper evidentiary issues and poor client management. It leads to evidentiary objections which annoy and distract the judge and leave to costly delays and cross examination inefficiencies .
92. As to these issues, the High Court has10:
“A striking feature of the evidence at trial, and of the reasoning of the learned primary judge, is the attention that was given to largely irrelevant information…Written statements of evidence, no doubt prepared by lawyers, were received as evidence in chief. Those statements contained a deal of inadmissible material that was received without objection. The uncritical reception of inadmissible evidence, often in written form and prepared in advance of the hearing is to be strongly discouraged. It tends to distract attention from the real issues, give rise to pointless cross-examination and cause problems on appeal where it may be difficult to know the extent to which the inadmissible material influenced the judgment at first instance”
93. Evidentiary objections should be discussed and negotiated between the advocates before trial, and if unable to be resolved, make an application seeking orders for proper preparation.
Order of Delivery of Statements
94. Usually a court will order the delivery of witness statements sequentially starting with the party with the burden of proof (applicant or plaintiff). The order of delivery and filing will be:
(a) firstly, the applicant/plaintiff will file and serve the statement of evidence in chief that party will rely upon as evidence in chief;
(b) secondly, the respondent/defendant party will file and serve the statement of evidence in chief that party will rely upon as evidence in chief, including any response to the first party’s material;
(c) then the applicant/plaintiff will file and serve any purely responsive material to the last statements.
95. However, where credibility disputes exist it may be appropriate to simultaneous exchange of statements. This is rare. There are problems of duplication, anticipation, shadowboxing and inefficiencies with the simultaneous exchange of witness statements.
Rule in Browne v Dunn
96. There is an important rule of practice known as the rule in Browne v Dunn.11 It has been formulated as follows by Hunt J.12
It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.
97. So if a court is to be invited to disbelieve a witness, the grounds upon which the evidence is to be disbelieved should be put to the witness in cross-examination so that the witness may have an opportunity to offer an explanation.
98. There are two aspects to the rule: firstly it is a rule of fairness, and secondly, it enables unchallenged evidence to be given greater weight .
99. Proceedings on statement and affidavit dispense with the first aspect if the witness has full notice of contradictory testimony and intent to impeach credibility of witness.
100. In a jurisdiction with long experience in this mode of trial, the Full Court of the Family Court authority of LC v TC (1998) 23 Fam LR 75 held at [31] – [39] the rule in Browne v Dunn does not apply where the witness is on notice that the witness’ version of events is in contest. That notice may come from the pleadings, the other side’s evidence, the other side’s opening, or from the general manner in which the case is conducted. In this case, in view of the extensive affidavits filed in the proceedings and the opportunities accorded to both parties to offer evidence-in-chief or in cross-examination, neither party was caught by surprise. However, this exception to the rule should only operate where the issue is a fairly clear and obvious one.
101. Cross in Evidence summarised the position (at [17445] omitting footnotes) in a similar way but highlights the forensic need to test evidence which will be relied upon on considerations of weight:
The rule does not apply where the witness is on notice that he witness’s version is in contest. The notice may come from the leadings, or a pre-trial document indicating issues, or the other side’s evidence, or the other side’s opening; it may come from the general manner in which the case is conducted; it may come from the way an earlier trial between the parties on the same issues was conducted. In general, however, this exception to the rule should only operate where the issue is a fairly clear and obvious one. Even where there has been an exchange of affidavits or statements, a cross-examiner must put to the witness any non-obvious implications which the cross-examiner proposes to submit can be drawn from the evidence.
The mere fact that the witness is on notice of a challenge does not shift any burden of proof resting on the party who gave notice. The cross-examiner who because of ‘noticing’ refrains from ‘putting’ the allegations to the witness embarks upon a potentially dangerous forensic course. The tribunal may not be persuaded of the fact in issue if there is no cross-examination on the issue. That risk increases where the party who makes the allegation can adduce no direct evidence as to it and the other party, having adduced no evidence in chief as to the issue, is not cross-examined.
102. So, whilst the mode of trial by statement or affidavit provides an exception to the application of the rule in Browne v Dunn, it is incumbent upon the cross examiner to not lose sight of the forensic aspect of the rule. That is, cross examination should ensure to enable the court to determine the weight of competing evidence..
Conclusion
103. In conclusion, I recap on some golden rules of good witness statements drafting:
1. Use an organised, logical structure.
2. Record a first person account in the language of the witness.
3. Use specific, relevant admissible evidence.
4. Do not merely transcribe the meeting with the witness.
5. Record evidence, not argument or commentary.
6. Avoid expressing conclusions or summaries.
7. Avoid restating the contents of documents.
8. Include evidence of state of mind and opinions only where relevant and admissible.
9. Limit defined terms.
10. Use the correct tense.
11. Do not use direct speech unless the witness has a word for word recollection.
12. Use temperate language.
Dean P. Morzone QC
Footnotes
1. Ipp, “Judicial Intervention in the Trial Process” (1995) 69 ALJ 365 at 379
2. Wang v Consortium Land Pty Ltd [2000] WASC 265 at [15]
3. A G Australia Holdings Limited v Burton (2002) 58 NSWLR 464 at [168]-[172].
4. Public Transport Authority of Western Australia v Leighton Contractors Pty Ltd [2007] WASCA 151 at [31].
5. Wolff “Access to Justice Report” para 55.
6. Rajasooria v Disciplinary Committee [1955] 1 WLR 405 at 413, Myers v Elman [1940] AC 282 at 322 and Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 at 60.
7. Klein v New South Wales Bar Association (1960) 104 CLR 186.
8. As to admissibility of evidence of conversations in written statements see generally LMIAustralasia Pty Ltd v Baulderstone Hornibrook Pty Ltd (2001) 53 NSWLR 31.
9. Linwood v Andrews (1888) 58 LT 612 and Kyle v Practitioners Complaints Committee (1999) 21 WAR 56 at 60.
10. Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [35].
11. Browne v Dunn (1893) 6 R 67
12. Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 at 16
