Wild v Meduri [2024] NSWCA 230

Wild v Meduri [2024] NSWCA 230 · Read the judgment on AustLII

Catchwords: Evidence of conversations – direct speech – civil cases in criminal matters

This is a rare civil case which has important consequences for criminal lawyers. In the shadow of a debate which has been playing out over whether conversations in affidavits need to be in the first person or not – ideally they should, but it depends on the witness’ memory – the NSW Court of Appeal has also suggested that witnesses giving evidence in Local and District Court criminal trials should not be forced into strict adherence to first-person accounts of conversation.

Following the death of their mother, a number of people commenced proceedings against her estate. One of them, the appellant, challenged the validity of the deceased’s will on the basis that the deceased did not have testamentary capacity. In the course of dealing with other issues which do not bear upon criminal law, the various judgments of the Court considered what has become a thorny issue of whether or not direct speech is essential in affidavits. For criminal lawyers, who may have managed to remain blissfully unaware, the last two years has seen a spirited debate about whether the ‘NSW practice’ in relation to affidavits was appropriate or even ethical. It gained some currency as a result of 2023 and 2024 Federal Court judgments by Jackman J, and another in the NSW Court of Appeal by White JA (also a member of this bench) agreeing with some of it. In particular, criticism had been levelled at the NSW practice of recounting conversations in affidavits by giving them in direct speech, with quotation marks, but prefaced with a phrase like ‘words to following effect’ – even where the witness remembered only the gist of the conversation.

The debate now has relevance to criminal practitioners for two reasons: First, solicitors often take affidavits from clients and their families for things like bail, sentences, and appeals; judicial officers are likely to have had one eye on this issue and may raise it in bail or sentence proceedings. Secondly, Kirk JA explicitly made some comments in this judgment which pick up the way that evidence is led from witnesses in criminal proceedings in the Local Court, whether in direct speech or otherwise.

The three judgments variously agree and diverge in ways that defy simple summary, but it is sufficient to say that the NSW practice has been confirmed. Particularly relevant to criminal matters, White JA in his judgment drew attention to Queensland authority in the criminal jurisdiction to the effect that there is no rule that a witness who does not claim to remember the words spoken must attempt to give them in direct speech, manufacturing a conversation from a recollection of its effect. The approach of a trial judge requiring that all conversations be put in direct speech was described as illustrating ‘excessive zeal’. The rules apply, White JA observed, not only in the Equity Division of the Supreme Court hearing civil matters, but also in criminal trials in the Local and District Courts around the state. The ability of a witness in a prosecution in the Local Court to give evidence in direct speech, after little or no time spent with a legal practitioner, is not likely to be the same as a business executive appearing in a commercial dispute who has spent significant time preparing with solicitors and counsel (at [340]).

In summary, insofar as a witness recalls actual words, then the witness should state those words in direct speech. Insofar as they recall only the substance of what was said, then they can give that evidence accordingly – whether in direct speech (after explaining that they are recording only the substance, effect, or gist of what was said), or in indirect speech. The aim should be to capture the best recollection of the witness with a level of detail appropriate to the issue in the case, doing so without being misleading as to the level of detail of what the witness actually remembers, and which meaningfully captures what the witness remembers in in a way that the witness has expressed and can explain (at [356]).

Having given his own reason for the position, Bell CJ agreed with White JA’s summary as set out above (see [254]), observing along the way that the absence of a detailed first-hand account of conversation may sometimes be more important than others. It might even be fundamental in some circumstances, with examples given of promissory estoppel, slander and oral contract. If the evidence is contentious, then it will inevitably be tested in cross-examination (at [250]).

It follows that, on the back of this authority, there may be something of a shift in criminal prosecutions away from an absolute insistence on direct speech in hearings and trials – at least, where the witness has said that they don’t have such a recollection. But it certainly follows that even if we criminal practitioners have traditionally gotten a little more leeway the finer points of drafting, we will now need to be mindful of the form in which we take affidavits from clients and witnesses.