Evidence of conversations – the use of speech in affidavits

Summary

Recent judgments handed down in both the Federal Court of Australia and the New South Wales Court of Appeal have commented on the presentation of conversations in evidence. The decisions in either jurisdiction have presented somewhat conflicting views on the longstanding practice in New South Wales of using direct speech in an affidavit which is prefaced by a qualification such as the phrase 'in words to the following effect'.

Although it is clear there is a need to distinguish 'gist' memory of witnesses from 'verbatim' memory and to ensure that a witness's recollection of a conversation is accurately reflected in their affidavit evidence, it is not clear whether the current NSW practice achieves this.