A recent commercial case in the Victorian Supreme Court has provided some useful guidance on how judges evaluate evidence.

In LL UP Pty Ltd v Kegland Distribution Pty Ltd [2024] VSC 651, Justice Clyde Croft provided a helpful overview as to the 13 propositions that must be weighed up when assessing witness evidence and credit, which we have summarised below.




1Fact-Finding in Complex Cases
When faced with stark conflicts in witness evidence, it is often flawed and impossible to fit all pieces of the jigsaw together.
However, a sufficient number of pieces may allow the full picture to be seen even when not all pieces may fit together.
2Component Parts of Evidence
When evaluating a witness’s evidence, it should be broken down into its component parts. If one element is incorrect, it does not
necessarily mean the rest of the evidence is unreliable.
3Fallibility of Human Memory
Human memory is a fallible reconstructive process. Memory can be influenced by external information, thoughts, litigation and
beliefs, leading to dramatic changes in recollection.
4Importance of Documentary Evidence
Documentary evidence is often more reliable than oral testimony based on recollection. Courts should look to contemporary
evidence to see the extent to which it supports or undermines oral evidence.
5Inherent Probability
Courts prefer evidence that is inherently probable in the circumstances. The inherent improbability of an event having occurred is a relevant factor in deciding whether it did in fact occur. Proof of an improbable event may require more cogent evidence than might otherwise be required.
6Consistency with Admitted Facts
Courts prefer evidence that is consistent with facts admitted by the parties or matters of common knowledge or experience.
7Evidence Against Interest
Courts prefer evidence given by a witness against their own interest.
8Independent Witnesses
Evidence from independent witnesses, who have no reason to be partisan, may be decisive in resolving conflicting evidence from
interested parties.
9Credibility vs. Reliability
There is a difference between credibility (honesty) and reliability. A witness may be honest but have a poor memory or be mistaken.
10Inherent Consistency
The inherent consistency of a witness’s account is important. If the evidence contains internal contradictions, it cannot be accepted as a whole and it must be determined which part should be rejected.
11Global Findings on Credibility
There are risks in making global findings about the credibility of a witness. If a witness has lied about one thing, it does not mean that other parts of their evidence are untruthful and assessment of the reasons for untruthfulness must be made to determine
whether other aspects of the evidence are likely to be infected by the same concern.
12Subsidiary Findings
Findings of credibility are not usually findings with respect to factual issues but usually subsidiary findings on the way to determining issues. In reaching a conclusion with respect to a critical fact, it is dangerous to reject all of a person’s evidence on the basis they have lied about a particular matter.  Evidence should be weighted rather than rejected outright when reaching a conclusion on a critical fact. Contemporaneous documents play a significant role in this balancing process.
13Cross Examination
If counsel does not challenge certain evidence in cross-examination, that failure can bear on the fact-finding process.

Authors

Bruce Crosthwaite | Principal Lawyer 

Bethany Whitehead | Lawyer