How should a court assess witness credibility?

In civil cases, facts must be proved on the balance of probabilities to the court’s actual persuasion.[1] Except for documentary or other so-called objective forms of evidence, proving a case will normally depend on the testimony of witnesses.

How, then, should a court — tasked with determining whether a fact has been proven — assess whether a witness is telling the truth? In Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd (No 10),[2] Delany J referred to a decision of the New South Wales Supreme Court where a number of factors were set out.[3] Those factors, which I have paraphrased and rearranged slightly, are as follows:

• Memory is fallible and a reconstructive process.[4]

• Findings on credit should not be made ‘globally’ — a witness may reliably recount some matters and not others.[5]

• Contemporaneous statements and documents are likely to be more accurate than a recollection of events.[6]

• A witness’ credibility and truthfulness can be tested by reference to objective fact, particularly documentary evidence.[7]

• Evidence given against interest or which is inherently probable is more convincing.[8]

• Affidavit evidence which is not tested in cross-examination is to be discounted in weight as appropriate ‘according to all the circumstances of the case’.[9]

• Negative facts must be proved — disbelieving a witness about one matter does not make the inverse of it true, although inferences may arise supporting the alternative state of affairs.[10]

• It may be the case that some issues cannot be resolved on the evidence at the court’s disposal, particularly where it is purely one witness’ word against another.[11]

To those factors I would add one more: one ought beware ‘the dangers of drawing conclusions about truthfulness or reliability solely by reference to the appearance of witnesses’.[12] Put another way:

[A]n ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.[13]

Finally, whatever the nature of the evidence — whether objective, or via witness’ testimony, or in some combination of the two — and whatever the credibility of any particular witness, it is worth remembering:

A trial judge is not bound always to make a finding one way or the other. Rather, in appropriate cases the judge can, and should, decide on the basis that the party bearing the burden of proof has failed to discharge it.[14]

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[1]: Evidence Act 2008 (Vic) s 140. Similar legislative provisions, codifying the common law, exist in other jurisdictions.

[2]: [2023] VSC 524.

[3]: Ibid [288], referring to Leung v Fordyce [2019] NSWSC 18, [75]–[82].

[4]: Watson v Foxman (1995) 49 NSWLR 315, 318–19.

[5]: Sangha v Baxter [2009] NSWCA 78, [155]–[156]; Hutchison Construction Services Pty Ltd v Fogg [2016] NSWCA 135, [11].

[6]: Nominal Defendant v Cordin [2017] NSWCA 6, [171].

[7]: Blacket v Barnett [2017] NSWSC 1032, [225], citing Armagas Ltd v Mundogas SA [1985] 1 Lloyd’s Rep 1 (‘The Ocean Frost’), 57 and Re Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, [7].

[8]: Saravinovska v Saravinovski (No 6) [2016] NSWSC 964, [467].

[9]: Fulton v Fulton [2014] NSWSC 619, [111].

[10]: Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640, 694.

[11]: Ak-Tankiz v Ak [2014] NSWSC 1044, [187].

[12]: 3 Apples Childcare Centre Pty Ltd v MMC Pacific International Pty Ltd (2023) 167 ACSR 401, [145], citing Fox v Percy (2003) 214 CLR 118, 129.

[13]: Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (1924) 20 LI L Rep 140 (‘The Palitana’), 152.

[14]: Bamber v Hartman Pacific Pty Ltd [2018] NSWCA 248, [90].