Getting a witness to repeat a story multiple times will almost always produce an ‘inconsistency’

This proposition is obvious, and the resultant ‘inconsistency’ does not demonstrate that the witness is lying. The popular example used by Irving Younger of Max Steuer’s cross-examination in the Triangle Shirt Waist Factory fire case is a case in point: the witness there may well have fabricated her evidence, but it is self-evidently not always the case that an ‘inconsistency’ is an indicator that thw whole story is made up.

Nevertheless, particularly in immigration, decision-makers all too often seize on tiny ‘inconsitencies’ which only arise because the applicant has been forced to repeat his or her narrative multiple times over many years.

In W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 379; 67 ALD 757 at [15] the Full Court observed:

As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account.

Credibility and allegedly ‘inconsistent’ evidence

Frequently a decision-maker will leap to a conclusion that an applicant has been ‘inconsistent’ in his or her account.  Frequently also, a decision-maker will bandy this label of ‘inconsistency’ incorrectly.

Often, in truth something may not be ‘inconsistent’. For example, the omission of making a particular claim at interview 1 does not mean it is an ‘inconsistency’ if raised in interview 2: see AVQ15 v Minister [2018] FCAFC 133 at [27].

Also, just because there is an ‘inconsistency’ (assuming that word is used correctly), it does not follow that a credibility issue emerges. For example, a minor inconsistency cannot be transformed into a reason to disregard the whole of an applicant’s claims: see AVQ15 v Minister [2018] FCAFC 133 at [28]; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 at [78].

Further, special attention needs to be given to the circumstances in which an applicant is giving evidence, before leaping to a conclusion of ‘inconsistency’ (or for that matter, adverse credit).  Thus, if an applicant warns that he or she is only giving a ‘summary’ which is ‘not an exhaustive statement’ and will be giving more detail at a later stage, a failure to appreciate that qualification may create a jurisdictional error: see AVQ15 v Minister [2018] FCAFC 133 at [28], [30], [33], [41].

Findings of fact apparently based on credibility cannot shield what is otherwise incontrovertible

A tribunal of fact cannot insulate its fact-finding by asserting that it is all based on credibility. This obvious proposition was explained in Fox v Percy (2003) 214 CLR 118:

[28] Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

[29] That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.

(footnotes omitted)

Blatch v Archer

A restatement of the obvious: in deciding whether something has been proved on the balance of probabilities, it is important to have regard to the ability of the party who has the onus to lead evidence on a particular matter.

From Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168; BC200103028 at [16]:

[14] There is a long-standing controversy whether the civil standard of proof requires a numerical probability in excess of 50 per cent (see Davies v Taylor [1974] AC 207 at 219), or belief amounting to reasonable satisfaction (see Briginshaw v Briginshaw (1938) 169 CLR 638 at 642-643). My own opinion is that the resolution of the controversy involves recognition that, in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision. I discussed this in some detail in an article published at (1995) 69 ALJ 731.

[15] In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so: cf 69 ALJ at 732-733, 736, 740. As stated by Lord Mansfield in Blatch v Archer (1774) 1 Cowp 63 at 65 (98 ER 969 at 970):

All evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

No leading questions in cross-examination of favourable witness

See s 42(3) of the Uniform Evidence Acts, which requires a court to disallow leading ‘if the court is satisfied that the facts concerned would be better ascertained if leading questions were not used’.

This provision does not appear to be used often enough in Victoria, although it is more frequently used in New South Wales.

Waiver of privilege over communications between solicitor and expert

In Traderight (NSW) Pty Ltd v Bank of Queensland Limited (No 14) [2013] NSWSC 211, Ball J observed that solicitors have a ‘duty’ to ensure that expert reports are in admissible form. This contrasts with the (unduly) conservative view that privilege in every piece of communication is necessarily waived by the service of the expert report.

See also New Cap Reinsurance Corporation Ltd (in liq) v Renaissance Reinsurance Ltd [2007] NSWSC 258.


Viva voce evidence in narrative form or with aids of charts, exhibits etc

Section 29 of the Uniform Evidence Acts provide:

Manner and form of questioning witnesses and their responses

             (1)  A party may question a witness in any way the party thinks fit, except as provided by this Chapter or as directed by the court.

             (2)  A court may, on its own motion or on the application of the party that called the witness, direct that the witness give evidence wholly or partly in narrative form.

             (3)  Such a direction may include directions about the way in which evidence is to be given in that form.

             (4)  Evidence may be given in the form of charts, summaries or other explanatory material if it appears to the court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given.

They appear to barely have been used.

In the context of narrative evidence (subs (2)-(3)), the QLRC observed that the Uniform Evidence Acts were meant to assist Courts to encourage narrative evidence in appropriate circumstances, but noted that this had not occurred often.  The QLRC also observed that courts have inherent jurisdiction to permit narrative evidence even without the Acts, but nonetheless such leave is rarely given.

There was no discussion at all about subs (4).

In Matthews v SPI Electricity Pty Limited (No. 34) [2014] VSC 40, the plaintiff argued that one of her witnesses ought to be permitted to refer to a physical model in the course of their giving evidence.  This was opposed by the first defendant.  The argument was resolved in the plaintiff’s favour not through s 29 but a broad application of the overarching obligations in the Victorian Civil Procedure Act.

Although there does not appear to be any authority which expounds a sensible approach, the practice of making ‘hearsay’ objections to evidence in chart form would appear to be squarely addressed by s 29(4) as well as s 50 (proof of complex or voluminous documents in ‘summary’ form).

Interestingly, there is a note to section 229 (jury documents) of the Criminal Procedure Act 2008 (Vic) which refers to s 29(4) and s 50 of the Evidence Act.  Section 232 (manner of giving evidence) also provides that nothing in it affects the operation of ss 29 and 50 of the Evidence Act.