DRAFTING WITNESS STATEMENTS: GUIDANCE FROM DOWN UNDER
Recent posts have given rise to a international tour searching out guidance for the preparation and drafting of witness statements. We have been to Scotland, and to the East, and now we arrive in Australia where the Western Australian Bar Association have produced an excellent guide on Preparing Witness Statements for Use in Civil Cases.
Some of the guidance is specific to the local jurisdiction. However there is much here that is of use to most practitioners. The guide does not hesitate to address difficult questions.
“SHOULD LEADING QUESTIONS BE ASKED IN THE COURSE OF PREPARING A WITNESS STATEMENT?”
You can, but you must be very careful, see section 10.
“Of course, it is appropriate to direct the attention of the witness to a
particular issue, such as by asking whether a particular topic was discussed
at a meeting. The important obligation is to ensure that it is the testimony of
the witness that is being recorded and not a false recollection encouraged by the lawyer.”
“TO WHAT EXTENT CAN A WITNESS BE ASSISTED IN PREPARING A WITNESS STATEMENT?”
Again useful guidance on the caution that must be exercised.
11.3 A witness should not be taken through a version of events and asked whether
the witness agrees with that version. For example, it is improper to ask a
prospective witness “Didn’t it happen like this…?” or “You must have been
there because isn’t that what you always did?”
“HOW SHOULD A WITNESS STATEMENT BE WRITTEN?”
19.1 A witness statement should be a clear, concise and logical statement of the
relevant testimony that a witness can give, expressed in the language of the
witness. The “author” of the content of a witness statement is the witness,
not the lawyer. In this respect witness statements are unlike other
documents prepared for use in court proceedings such as pleadings,
submissions, chronologies and the like. A lawyer preparing a witness
statement must adopt a fundamentally different approach to that which
might be used in preparing other documents.
This section, at 19, goes on to encourage:
1. An organised, logical structure.
2. A first person account in the language of the witness.
3. The statement should be specific an relevant.
4. The statement should consist of evidence, nor argument or commentary.
5. Similarly it should be evidence not conclusions.
There are excellent examples of the latter.
19.24 A common problem with witness statements is that they are summaries of
what happened instead of a statement of the evidence that the particular
witness can give. A statement that “At the meeting we both agreed that the
price for railway sleepers would be 30% off the list price…” is a summary.
Instead, the statement should say “At the meeting I spoke to Brian Jones
about buying timber from Jones Hardware. I do not remember the precise
words, but I recall the main parts of the conversation. I asked him what he
would charge for a large quantity of railway sleepers. He told me that the
price would be 30% off the list price for a decent quantity. I said I would ring
the next day and place an order. He told me to tell the order clerk that we had
spoken about the price and the price would be 30% off list”.
19.25 Another problem is expressing a conclusion like “I saw the accident. The
bloke in the blue car caused the collision”. Instead, the statement should
describe the events in as much detail as the witness can recall. It is for the
court to draw inferences and conclusions about causation, not the witness. 24
Avoid restating the contents
Other guidance includes:-
1. Avoid restating the contents of documents.
2. Include evidence of state of mind and opinions only when relevant and admissible.
3. Limited legal terminology (“defined terms”)
4. Use the correct tense.
5. Do not use direct speech unless the witness has a word for word recollection.
6. Use temperate language.
7. Give the witness time to read and approve the statement.
RESPONDING TO OTHER EVIDENCE
A particularly useful section deals with responsive evidence, when a witness is responding to other statements.
24.1 A witness statement is not a pleading. It should never adopt the form of
responding to particular paragraphs in other statements. The witness should
not be told what is in other witness statements. It is the responsibility of the
lawyer to identify topics relevant to the issues in the case that have been
addressed in other witness statements and to elicit the testimony of the
witness as to those topics and record the testimony in the statement. As
explained elsewhere in this Guide, the testimony should be elicited by open
questions that do not direct the witness to give a particular version of events.
24.2 A witness is not called to argue the case or dispute the evidence of other
witnesses. A witness is called to give his or her own version of the relevant
events. The written statement of the witness is simply recording the 31
testimony of the witness. It may be testimony that is different to that
recorded in the statements of other witnesses. Ultimately, that may be a
matter for comment and submission by counsel. However, it is not the role or
responsibility of a witness to argue for the witness’s version of the events.
Indeed, it is fundamentally inconsistent with the role of a witness for
“evidence” to take the form of a response to the evidence of others.
24.3 At trial, counsel will have an obligation to put an inconsistent version of the
facts to a witness when cross examining the witness. However, the evidence
in chief of a witness recorded in a statement is the testimony of the witness,
preserved as much as possible from any process that will taint the
independence of that testimony.
There are usual examples within the guide itself.