Evidence: Challenges with memory and oral evidence inconsistent with the documentary record

In Street v Fountaine the Court of Appeal weighed, as it was bound to, the impact of the passage of time on memory and the circumstances in which memories are recalled.[1] In Glenn v Watson, the English High Court said that “[d]espite the primacy which our trial system has long given to oral evidence, it is by now a commonplace that the memory even of witnesses who are doing their honest best is often unreliable”.[2]  What this means in practice is that courts are increasingly careful to critically interrogate oral evidence as against the documentary record.[3]

When crafting evidence it is vital to be aware of the effect of time on memory.  It is also essential to be aware that to the extent oral evidence deviates from the documentary record, explanation will be needed before the oral evidence is accepted over the documentary record

[1]           Street v Fountaine [2018] NZCA 55 at [128].

[2]           Glenn v Watson [2018] EWHC 2016 (Ch) at [58].

[3]           Burden v Debonaire Furniture Limited [2017] NZHC 1553 at [49].