For most people who contemplate and then embark upon litigation, the prospect of appearing on the witness stand at trial is far from appealing. Legal scenarios that play out on television often have a revelatory moment when a character is on the witness stand either giving evidence or being cross examined. However, the reality is often far less dramatic and witnesses often have unrealistic expectations about the value of their evidence.
Credible witness?
The reliability of witness evidence has been a source of judicial comment for many years. Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 stated at 431:
“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 by over much discussion of it with others? […] 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. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”
Later, Mr Justice Bingham (as he then was) set out the accepted test for credible witnesses in The Judge as Juror: The Judicial Determination of Factual Issues published in Current Legal Problems 38:The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case:
- 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;
- the demeanour of the witness.
Robert Goff LJ in Armagas Ltd v Mundogas S.A. (The Ocean Frost) [1985] 1 Lloyd’s Rep 1 at 57 stated:
“It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence […] reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.”
The recent case of GH v The Catholic Child Welfare Society (Diocese of Middlesburgh) [2016] EWHC 337 (QB) included some discussion of the authorities regarding the credibility of witnesses.
The facts:
- The Claimant had a difficult upbringing and was from a poor family;
- The Defendants were the Diocese of Middlesburgh (the Diocese) who were responsible for the management of St William’s School and representatives and/or members of a lay Catholic teaching order called the Institute of the Brothers of the Christian Schools (De La Salle) (the Institute);
- The Institute had a community of brothers living at St Williams’ School; and
- The Claimant claims that he was physically and sexually abused whilst resident at St William’s School between 1985–1986;
Comments from HHJ Gosnell
HHJ Gosnell recognised at para 24 that “the reliability of a witness’s recollection is difficult to assess independently of an assessment of their likely truthfulness.” The obvious pitfalls of relying on human memory for accurate oral evidence were explored by Mr Justice Leggatt in Gestmin SGPS S.A. v Credit Suisse (UK) Limited and others [2013] EWHC 3560 (Comm) (a case in which this firm acted):
15. An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.
[…]
21. The best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.
HHJ Gosnell found no difficulty in applying a similar rationale to this case, especially as “it would not be difficult to find motives why either the Claimants’ or the Defendants’ witnesses might choose to lie.”
Decision
Once the issue of limitation was dealt with, this case turned on the credibility of the witnesses for both the Claimant and the Defendants and how their testimony compared with the contemporaneous documentary evidence available regarding the alleged incidents.
HHJ Gosnell summarised that “the burden of proof is on the Claimant to satisfy me on balance of probability that he suffered the sexual and physical abuse which he contends occurred in this case. He has failed to discharge that burden. I found him an unreliable witness. […] There were too many unexplained inconsistencies in his evidence and his performance in the witness box did nothing to allay my concerns.” In reaching this conclusion, HHJ Gosnell examined reports that were written by Brothers of the Institute at the time, as well as various other reports regarding the Claimant’s behaviour. HHJ Gosnell accepted that the Claimant may not have come forward with the allegations against the alleged abusers at the time for obvious reasons. However, the Claimant was not a credible witness, and so was unsuccessful.
Conclusion
It is clear that the credibility of any witness is judged by considering the weight and substance of documentary evidence ahead of the performance of the individual witness in the witness box. Documentary evidence provides objective evidence of events whereas the subjective account of some witnesses may prove to be too unreliable to bear any weight, and perhaps even fatal to their entire case.
Gibson & Co.
February 2017