Fact-Finding Made Easy (2006)

This paper by The Honourable P W Young AO KC (former Judge of the Supreme Court of New South Wales) was first published by Thomson Reuters in the Australian Law Journal, “Fact-Finding Made Easy” (2006) 80 ALJ 454.[1]

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The basic task of most courts, tribunals and arbitrators is to find the facts. There is little material on the subject as to how one goes about this task. This article seeks to list the guidelines from the author’s experience of 21 years on the Bench as well as reference to the few pieces of written material on the subject.[2]

Introduction

In M J Trow’s book, Lestrade and the Sign of Nine, p 17, Sergeant George introduces two new recruits, Constables Tyrell and Green, to Inspector Lestrade. Lestrade says to the first, “You’re Green”. “No, Sir” says the constable, “I’m Tyrell!” “Well” said the inspector, “that’s your first lesson in detective work: you only have at least a fifty-fifty chance of being right!”

The purpose of this article is to endeavour to improve a judge’s chances to well above fifty-fifty of being right in a fact-finding exercise.

Actually the title to this article is quite misleading. Fact-finding is actually a very difficult matter and there is no magic formula to apply to make the process become easier. However, by following the guidelines mapped out by experience, the chances of reaching the correct finding of fact will be enhanced.

The guidelines will be arranged under the following headings:

• General observations
• “Rules” from the cases
• Primary principles
• Analysis
• Secondary guidelines
• Pitfalls
• Satanic verses
• Expert evidence
• Conclusion.

General observations

Fact-finding by courts is basically the same process as fact-finding in everyday life.

The basic difference is that with fact-finding by the courts, the rules of evidence help us to exclude from our assessment process material which experience has shown has a high degree of unreliability.

In ordinary life and in court, we seek the truth. There is no need to philosophise about truth. Truth is, for this purpose, what really happened. But we cannot assume that we will always find out what really happened no matter how hard we try. This may be because of lack of evidence, perhaps because all the witnesses are dead or brain damaged, or it may be that some one or more persons are deliberately laying false trails to avoid the truth coming out.

The basic necessity in fact-finding is to have before you the fullest detailed observation of all possible witnesses. A judge has not the luxury of ensuring that this will occur. He or she is limited to the material that the parties place before the court. However, because one would expect all parties to put before the court all material which would advance their case, the absence of such material will often be significant.[3]

The basic skills required in fact-finding are listening and observation. Some subrules flow from this statement:

1. A judge will not really be listening if he or she continually interrupts. A real listener listens with an open mind.
   This is not to say that the judge should not interrupt from time to time. It is very appropriate to do so in order to steer a case back onto its proper track or to ensure, as far as possible, that people are not at cross purposes or that the witness is not misunderstood. However, fact-finders should, as much as possible, assess the witness on her or his own performance.
2. Although the judge will not constantly stare at the witness, he or she must continually be alive to the significance of the witness’s body and eye language. This will disclose not only the obvious giveaway as when the witness constantly looks at his wife in the back of the court for her nod, but also less obvious signs such as the witness not making eye contact with counsel when on doubtful ground etc.
3. Some of us think that we are wiser than our forebears and that the rules of evidence were for the old days with uneducated juries. In actual fact, those rules were developed over many years of experience to exclude from consideration material which will have the tendency to bring about a false answer. Thus, even though material that is strictly inadmissible may get into evidence through incompetence of counsel or otherwise, its use must be carefully considered.

It must always be remembered that fact-finding greatly relies on human testimony. Because of human nature, even a witness who is endeavouring to tell the truth, the whole truth and nothing but the truth, may be unreliable. There are a number of articles and other writings on this subject.[4]

“Rules” from the cases

Some leading cases provide guidance as to what inferences may be drawn in appropriate cases. The following excursus will not provide a full exegesis of those cases, but will merely touch on the crucial points.

Rule in Jones v Dunkel (1959) 101 CLR 298

A witness is not called who appears to be in a party’s “camp”, and there appears to be no explanation for her or his absence, then the court may draw the inference that that witness would not have assisted that party’s case.

This rule often gives rise to the innocent question in cross-examination of a witness in the opposing camp, “You saw Mr X last week and, as far as you know, he is alive and well and living in Sydney?” An affirmative answer will go to establish that the witness was available to be called.

This is not the place to consider the rule in detail. This is well done in Cross on Evidence (see 5th Australian edition at [1215]). All that needs to be done in this article is to draw attention to its existence as a tool in fact-finding.

The courts have now moved to what might be called, “Jones v Dunkel extended” as a result of the judgment of Handley JA in Commercial Union Assurance Co of Aus Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418–419, that if a party fails to ask her or his own witness questions about a matter on which the witness could have testified, the court may infer that that witness would not have given evidence on the point favourable to that party.

Note that in each case the court may, not must, draw the inference.

Rule in Browne v Dunn (1894) 6 R 67

This rule, originally only reported in an obscure set of reports, is now best set out in the judgment of Hunt J in Allied Pastoral Holdings Pty Ltd v Cmr of Taxation [1983] 1 NSWLR 1. Unless it is perfectly clear from the material to be relied on which has been notified to the opponent the position taken by a litigant on a particular point, a party must put to opposing witnesses on the subject, the case being made so that the witness has the opportunity of meeting it.

Thus, if the plaintiff’s case is that X was driving the car at the time of collision and the witness says it was in fact A, usually the cross-examiner will at least have to put a question to get the witness to agree or disagree that Y was driving. Unfortunately, this often degenerates into an advocate putting, “I put it to you that everything you have said about the accident is a lie”. The witness gets offended, eventually he or she answers “No” and the judge is assisted not one whit.

Rule in Connor v Blacktown District Hospital [1971] 1 NSWLR 713

This is that if there is evidence of a general practice in a business or government department and evidence that that practice was followed in the instant case, the court may infer that the usual system was followed. Thus, if X wrote a letter, but cannot remember posting it, the fact that in the ordinary course of business it would have been posted is some evidence that a letter was sent.[5]

Primary principles

The aim is to discover the truth, or, at least, to be satisfied as to what happened on the balance of probabilities. This is simple when all the witnesses are telling the same story. However, contested litigation usually involves conflicting stories.

It must always be remembered that the human memory is fallible and that, without malice, people can believe that they remember things which they have convinced themselves must have happened (self-justification) or because someone has successfully implanted the idea. Thus, when a person gives evidence of an observation, the capacity of the witness to make the observation must be assessed. Usually the cross-examiner will sufficiently deal with this point.

Meares J in his 1984 paper to the Australian Institute of Arbitrators ((December 1984) The Commercial Arbitrator 64 at 66) said that any observation is affected adversely by the following factors:

• insignificance of the event
• length of the period of observation
• less than ideal observation conditions
• observing under stress
• observer’s physical condition,
• lack of memory inhibiting recall.

Thus, a witness’s statements must be tested in the light of reliable documents and external factors. If the witness says that she saw X on 4 September 2005 as she was going to the Balgowlah cinema to see Harry Potter No 1, evidence from the cinema proprietor that the film was screening only a week later, would usually be sufficient to disregard the witness’s evidence, at least as to the date.

Common sense comes into the equation. If there is a collision on a Sunday between a woman driving her elderly mother to church and a youth in a hot rod, and each alleges the other was proceeding at 150 kph, common sense tells one that the woman is more likely to be correct. However, here one must watch one’s natural prejudices, and not merely quote a Satanic verse such as, “Young men are more likely to be the cause of an accident than middle-aged women”.

Logic also plays its part. If A, B and C are proved and Z logically follows, then Z is proved.

Considerable emphasis is given to assessment of the demeanour of a witness. However, great care must be taken, not to make a wrong assessment. A witness may be shaking and nervous because it is her first time in a witness box, or because she has the flu or because she is lying and hopes she will not be found out.

Often the demeanour will be obvious such as the witness who constantly asks for the question to be repeated and looks at his wife who is sitting in the back of the court for inspiration.

The court is able to consider the demeanour of a witness out of the witness box, such as in the back of the court, but must inform counsel of the observations to give counsel an opportunity to explain.[6]

Analysis

In a case where there are a number of witnesses testifying to an event, it is often helpful to create a primitive spreadsheet of the evidence.

Suppose the event is whether Zoe Zemple was the person who cashed a cheque at the ANZ Bank’s Burwood New South Wales branch at 2 pm on 2 April. There are five witnesses (Ann Anson, Brian Beatty, Carole Cush, David Denison and Edwina Evans (the bank manager)) who give evidence of having seen Zoe between 1.30 pm and 2:30 pm that day.

One makes a table, setting down the names of the witnesses on the left, giving a transcript or affidavit reference against each witness’s name in the next column, then a resume of evidence on a particular incident in the third column. One might thus get a table like this:

A	T419	Z wore red dress. Z entered bank with Yvonne Yeats at 1.45 pm.
B	T47	Z wore red dress. Z left bank with Fred Fisher at 2 pm.
C	T235	Z wore red dress. Saw Z at North Sydney having lunch at 1:50 pm.
D	T112	Z wore red jacket and grey trousers. Spoke to Z in bank at 2 pm.
E	T365	Can’t remember what Z wore. Diary shows interview with Z at 2.30 pm.
Z	(Zoe herself)	I don’t own any red dress, I do however have a wine coloured twin set which I wore that day. I was in Burwood buying a bottle of water at about 2.15 pm, but I didn’t go to the ANZ Bank.

When this table is complete, one can analyse it in two ways:

• first, one sees whether there is one witness whose observation differs significantly from the others. If so, the judge should examine that witness’s evidence very minutely;
• second, one looks to see if there is an hypothesis with which all the evidence, or most of the evidence is consistent.

This does not always work out. However, in the example, Zoe appears to be the odd one out. But, even if it does not work, it does give clues as to what to look for. If it is a vital matter for the plaintiff to fix the time at 2 pm exactly, why did the plaintiff not call Yvonne Yeats and Fred Fisher? Bank Manager, Edwina Evans’ time is so out of kilter with the others that perhaps she wrote up her diary days later and at that stage did not remember the time exactly. Has counsel cross-examined on this? If not, perhaps it would be wise while Edwina Evans was still in the box for the judge to ask a couple of questions to give counsel the hint that Ms Evans’ records might not be accurate and that she should be tested on her records generally.

Carole Cush’s evidence also does not quite fit. It would also be useful to see if witnesses A, B and D had compared notes.

Secondary guidelines

There are not that many books and articles written on fact-finding. However, in Richard Eggleston’s Evidence, proof and probability, (Weidenfeld and Nicolson, London, 1978) pp 155-157, the following excellent guidance appears as to what factors a judge takes into account when deciding whether a witness is telling the truth:

• the inherent consistency of the story. (If the evidence contains internal contradictions, it cannot be accepted as a whole. The question may then be, which part to reject.)
• consistency with other witnesses
• consistency with undisputed facts
• the “credit” of the witness
• observations of the witness’s demeanour and characteristics able to be observed in the witness box or in the court room, such as hearing and eyesight, and the ability to judge distances,
• the inherent probability or improbability of the evidence.

In his paper (Bingham, “The Judge as Juror: The Judicial Determination of Factual issues”
(1985) 38 Current Legal Problems I-27),[7] Lord Bingham says:

The normal first step in resolving issues of primary fact is, I feel sure, to add to what is common ground between the parties (which the pleadings in the action should have identified, but often do not) such facts as are shown to be incontrovertible. In many cases, letters or minutes written well before there was any breadth of dispute between the parties may throw a very clear light on their knowledge and intentions at a particular time. In other cases, evidence of tyre marks, debris or where the vehicles ended up may be crucial.

Later, Lord Bingham, adopts much the same view as Eggleston. He says that the main tests as to when a witness is lying are:

• the consistency of the witness’s evidence with what is agreed, or clearly shown by other evidence to have occurred
• the internal consistency of the witness’s evidence
• consistency with what the witness has said or deposed on other occasions
• the credit of the witness in relation to matters not germane to the litigation, and
• the demeanour of the witness.

Lord Bingham also points out that the usual process of giving statements to and being interviewed by lawyers and being involved in preliminary proceedings may lead to the witness being exposed to misinformation. That misinformation may then cloud the recollection of the true facts. A witness may indeed be a good observer and an honest person, but may be caught out in cross-examination on part of the absorbed misinformation.

Onassis v Vergottis [1968] 2 LI Rep 403 at 431 is one of the few pages of the law reports where one may find a judicial exposition of credibility. On that page, Lord Pearce said:

“Credibility” involves wider problems than mere “demeanour” which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly, and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or overmuch discussion with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination more active. For that reason, a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point, it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability.

Not all facts can be proved by primary evidence. There is usually room for the judge to infer secondary facts. This can be a dangerous process, especially if one is egged on by enthusiastic counsel repeatedly saying, “Your Honour should infer from this that X is the fact”. There is a world of difference between situations where a judge can make an inference and cases where an inference should be drawn.

Often inferences are at least semi-logical. Thus, a judge may reason, “if X were so, one would have expected A to do Y. A did not do Y; therefore X may not be so”. Care must be taken with this type of reasoning as some greater pressure may have been experienced by A so that though he or she intended to do Y, there was a greater necessity to do Z.

Counsel often ask in cross-examination, “If that is so, why didn’t you put that in your affidavit” (or tell the police at the scene or otherwise say it when, if it were true, it would have been expected to be said). On some occasions, the witness may give a good reason. Mostly, however, some lame reason is proffered such as, “I told my solicitor and trusted her to put everything relevant in the affidavit and did not notice it was not there”.

The significance of the omission depends on the seriousness of the omitted material. As I set out in Civil litigation,[8] a woman who complains that her husband insulted her, but does not put in her affidavit the statement she now makes that her husband called her a prostitute and slapped her face in front of her children, is not likely to be accepted on her recent statement. If a person omits major matters from an affidavit or statement made closer to the event, there is a strong probability of recent invention.

Pitfalls

There are a number of occasions when a judge will give too great an emphasis to one of the guidelines in this article and perhaps reach a false result.

There is a view expressed in the maxim, “falsus in uno, falsus in omnibus” which holds that a witness who has proved to have lied on one matter will be willing to lie on all matters.

This may be the case with a deliberate lie, but it is not universally true that a witness whose evidence is disbelieved on one matter should be disbelieved totally. Just because a person is giving evidence which must be wrong in one respect, does not mean that her or his evidence is generally unreliable, though credibility is weakened by the error.

Bias and motive to assist a party are relevant factors in the evaluation. However, a judge must be careful not to be carried away by counsel’s cross-examination which shows that a bad motive or possible bias may exist. There will be many situations where a factor may exist from which one could find bias, but there is no bias or bad motive in fact. It is a common error to find from the proposition that a witness could be biased that he or she is in fact biased.

Thus, a police constable may possibly have a motive for lying to assist her sergeant because of solidarity in the police force. However, one cannot discount every piece of evidence the constable gives because of that factor.

One must also ensure that one does not get too negative and repeat the mantra, “There is not enough evidence”.

The story goes of a lawyer who arrived home after visiting Fred Johnson’s home. The lawyer’s wife asked him, “Did you see Fred’s new baby”. The lawyer replied, “I did visit Fred Johnson’s house and a woman came to the door who was carrying a baby. The woman may or may not have been Mrs Johnson and the baby may or may not have been Fred Johnson’s!” While that may be a perfectly accurate statement by a witness, a judge should have no difficulties in finding on the balance of probabilities that the lawyer did see Fred’s new baby, if that were the whole of the evidence on the topic.

Satanic verses

There are ways of deciding cases without thinking too deeply, and using these methods will improve one’s statistics as to volume of cases decided but will reduce, quite dramatically, one’s chances of being correct. A problem is that some of these maxims actually have some scientific basis, but those that are in this category still cannot just be applied in all circumstances.

So with children, one can adopt the adage, “children fantasise” or “children do not lie”, or people of particular racial or ethnic background will usually agree with whatever proposition is put to them by a person in authority, again, to quote the Bible (out of context), “all Cretans are liars”.

Some Satanic verses go deeper than this. Haward said in “A psychologist’s contribution to legal procedure”: “The discouraging fact is that even intelligent people argue in favour of common sense [over scientific proof]”.[9]

Expert evidence

Expert evidence can be decisive, but it needs to be watched carefully.

One of the problems with expert evidence is the practice of solicitors in sounding out a number of experts and only using those favourable to their case. This is understandable, but it does not assist the court. Sometimes, the existence of expert evidence which is not called will be revealed in other reports and will come to light in cross-examination or the judge may be able to draw inferences from its non-appearance.

Another problem is the extensive use of junk experts. A person qualifies as an expert on very minimal qualifications. A person who has just graduated from medical school after a series of post-examinations is not as qualified to give expert evidence as her or his professor who has been a leader in the field for the past decade. However, the lawyers will be putting up the junk expert as equally acceptable as the experienced expert.

At the other end of the scale is the experienced expert who is not going to give the judge a chance of differing from her or him. This brand of expert knows he or she is right and considers the fact that the judge is going to decide the case, rather than herself or himself, is just a fault in the legal system. Over-confidence in one’s ability often leads to error.

Expert evidence is fairly useless if there is not the evidence of the facts which the expert has assumed. The law in this regard was expounded in the New South Wales Court of Appeal in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 729 by Heydon JA, who said that the prime duty of expert witnesses in giving opinion evidence is to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions. His Honour went on to say (at 731):

The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed as “sufficiently like” the matters established “to render the opinion of the expert of any value”, even though they may not correspond “with complete precision”, the opinion will be admissible and material.

The quotes derive from Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505.

Conclusion

Fact-finding is often not easy. To a great degree the exercise involves the application of common sense and the judge’s experience of life. However, care must be taken not to apply one’s own prejudices and cultural conditioning. There is no magic formula to apply when finding facts. Furthermore, the quality of the result will depend as much on the quality of the material presented and the skill of the advocates as on the judge’s ability.

While there is no substitute for experience as a teacher, the guidelines in this article hopefully will assist in achieving a better average than 50% correct.

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[1] Former Judge of the Supreme Court of New South Wales.

[2] This article was first published by Thomson Reuters in the Australian Law Journal, P W Young, “Fact-finding made easy” (2006) 80 ALJ 454. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at legal.thomsonreuters.com.au/search. The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe-or-purchase.

[3] See below under the Heading “‘Rules’ from the cases”.

[4] See, eg Barry JV, “The Problem of Human Testimony” (1938) 11 ALJ 314; Young PW, Civil litigation (Butterworths, Sydney, 1985).

[5] See Trotter v Maclean (1879) 13 Ch D 374.

[6] See Government Insurance Office (NSW) v Bailey (1992) 27 NSWLR 304.

[7] Reprinted in Bingham, The Business of Judging (OUP, 2000).

[8] Young PW, Civil litigation: A Practice Guide for Advocates (Butterworths, Sydney, 1986) pp 137–138.

[9] Haward LRC, “A Psychologist’s Contribution to Legal Procedure” (1964) 27 Mod LR 656.