Barry, James --- "Judging the Facts (Or Did Priscilla Spiro Take My Pencil?)" [2000] ALRCRefJl 21; (2000) 77 Australian Law Reform Commission Reform Journal 8

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Reform Issue 77 Spring 2000

This article appeared on pages 8 - 11 & 89 of the original journal.

Judging the facts (or Did Priscilla Spiro take my pencil?)

By Justice James Barry*

In my early years at primary school I sat next to Priscilla Spiro, a girl with bright ginger hair done out in plaits on each side and a face covered with freckles. As far as six-year-olds go we got on reasonably well until one fateful day. The nun who taught us told us to pick up our pencils. To my horror the pencil I had used earlier that day, which I left on my desk in front of me prior to little lunch, was now missing.

A frantic search of my bag, my desk and my person was to no avail. If I had found a spare pencil I may not have been in such a panic. Glancing in sweet Priscilla’s direction I spied what appeared to be my pencil in her overstocked, smart-looking wooden pencil case. All of her pencils had her name ‘P Spiro’ carefully printed on a bare patch of wood neatly carved at the top of the pencil. This particular pencil did not. Furthermore, the pencil I sighted had my distinctive teeth marks at the top end. Miss Spiro had never been seen to bite a pencil in her educational career to date. I asked her for my pencil back. She said it was her’s. A dispute ensued which called for the intervention of Sister Frances who in all solemnity informed the entire class Priscilla was to stick out her tongue. If it was white she was telling the truth – if it was black she was telling horrible lies and the pencil was really mine. I was immediately suspicious of this method of determining truth or falsehood. Priscilla put out her tongue for all to see – I thought it was neither black nor white but pink. It was not until years later did it occur to me I should have taken this technical point. Sister Frances pronounced Priscilla’s tongue white and the pencil was hers. Priscilla smiled somewhat smugly at me. I returned a venomous glare and became convinced that this was not an appropriate method for determining whether someone was telling lies or not. In the years after I was appointed to the bench when grappling with the dilemma of witnesses giving widely divergent accounts of the same incident it crossed my mind from time to time to ask the various witnesses to put out their tongues so I could see if by chance anyone’s tongue had turned to black in the course of the proceedings.

Invariably a judge will be confronted with a situation where someone is telling lies. That much is obvious. But who? Judges throughout Australia are confronted with this type of scenario on an almost daily basis. It is rare indeed to have a case that does not involve some level of disputed facts. How do judges decide who is telling the truth? Do they have special powers the rest of the population do not possess? Sadly, they do not.

Checks & balances

Justice McKenna, an English judge, in a paper delivered at University College, Dublin in 1973¹, summarised his views in the following terms:

‘I question whether the respect given to findings of fact based on the demeanour of the witness is always deserved. I doubt my own ability and sometimes that of other judges to discern from a witness’s demeanour or the tone of his voice whether he is telling the truth. He speaks hesitantly. Is that the mark of a cautious man whose statements are for that reason to be respected or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help.’

What the legal system has done is to recognise its own fallibility and as far as possible to build in a system of checks and balances. These include strict rules governing the admissibility of evidence, reliance on the onus of proof and standard of proof, the use of jurors in criminal trials to determine the facts and the accused’s guilt or innocence, a system of appeals to review the decisions of juries or trial judges. There are examples where cases have been reviewed years after the original determination when fresh evidence has come to light.

Over the years there have been many scientific breakthroughs, which have assisted considerably in the complex process of determining facts. Experts in ballistics, finger-printing and handwriting to name but a few such disciplines can give cogent, even compelling, evidence in a trial. When I first practised law, paternity suits were a nightmare of evidentiary woes. Blood tests could in limited circumstances confirm a male was not the father, but were not able to prove the positive. For a fascinating account of a wrong baby case the reader is referred to the High Court decision of Morrison v Jenkins². Sir John Barry (no relation), a judge of the Victorian Supreme Court, accepted blood test evidence that the husband of the plaintiff could not be the father of the infant she had in her care. The judge refused to accept the conclusion that she had engaged in an adulterous association and therefore found the plaintiff’s child and the defendant’s child had been switched in the maternity ward of the hospital. The High Court rejected the trial judge’s findings of fact and reversed the decision. Subsequent investigations over many years (predominantly by journalists) would indicate a strong likelihood that the trial judge had indeed got it right and it was the appellate court that was in error.

With the advent of DNA typing, paternity suits are now largely a question of ordering the tests to be carried out and waiting for the results to come in. The evolution of the breathalyser has taken much of the guesswork out of the factual determination of whether a person was or was not under the influence of liquor at the relevant time.

It is rare that a litigant’s case will stand or fall on the evidence of a single witness. As often as not, evidence develops a jigsaw pattern, with relevant pieces of evidence interconnecting to form a cohesive, comprehensive whole. If a piece of evidence does not fit this emerging pattern, either the jigsaw pattern is wrong or for some other reason the particular evidence must be rejected.

A little example

I adjudicated in a property settlement determination in a Queensland country town in the mid-1980s. It was clear the parties’ capital had diminished by about $100,000 in the previous 12 months. The wife conducted a small business, which kept few accounting records. The husband blamed the wife for the dissipation of the missing funds saying that the business had been running at a serious loss. The husband was a legal practitioner. The wife alleged he had dissipated the funds at nightclubs and brothels in the city. The husband strenuously denied the allegations describing them as scurrilous. He said the few times he was home late he had been working back at his legal practice. For reasons that now escape me there were very few banking records produced before the court. Having heard the competing versions I was at something of a loss as to which version was the more credible. However, the wife had been in the habit of removing from her husband’s suit coat the automatic teller machine (ATM) slips she had found there over the previous 12 months. Once counsel for the wife established that the husband was the only person with access to this particular account, he produced the ATM slips. Such documents are not only date stamped, they are time stamped. Virtually every slip (and there were many of them) was for amounts of $200, $300 or $400 and was shown as being withdrawn in the early hours of the morning at an inner city bank. I ultimately accepted the wife’s account. The objective evidence of the ATM slips fitted perfectly with the wife’s account of events and conversely was totally at odds with the husband’s account.

Some helpful tips

From talking to judges at conferences and reading judgments from courts in a wide number of jurisdictions it would be my experience that most judges would follow – to a greater or lesser extent – the following rules:

• A detailed chronology of events in a case is particularly helpful. If event B follows event A it could be concluded it was a natural expected consequence. If the evidence indicates the events were in the reverse chronological sequence then the inferences or conclusions to be drawn are far more problematical.

• If a litigant’s case is internally inconsistent special scrutiny must be given to see if the inconsistency can be explained.

• Judges will reject evidence that is inherently improbable. However, what is ‘inherently improbable’ must depend, to some extent, on the subjective assessment of the individual judge.

• Examine the evidence according to the time at which it came into existence. In normal circumstances the judge will attach significantly more weight to evidence (particularly documentary evidence) predating the dispute.

• Rely as much as possible on undisputed facts or facts which cannot reasonably be challenged.

• If there is a conflict between a witness’s testimony and documentary evidence such as bank records or a passport entry, there has to be some explanation to justify the court rejecting the documentary evidence, which one would normally expect to be reliable.

• Judges will confine themselves to making those findings of fact relevant to the decision to be made. Most judges observe how frequently litigants and their legal representatives will exhaust themselves on disputed facts that have little relevance to the overall issue. In most instances such factual disputes are found to be immaterial and may safely be left unresolved by the trial judge. A cautious judge would normally advert to the fact that he/she found such issues irrelevant and has deliberately not attempted to resolve such conflict.

• Judges have a wide number of options open to them. A judge may find a witness honest and reliable or honest and unreliable. Courtrooms are filled with witnesses whose memories, as time has passed, become more and more certain and less and less accurate.

Assessing oral evidence

There is a widely held belief in the community at large that lying can be detected by watching and listening to the account of a witness. There are a number of difficulties in accepting such a proposition.

First, it does not accord with such research as there is on the subject. The reader is referred to an article entitled ‘The Myth of the Impressive Witness’ by Loretta Re,³ the thesis of which is that psychological research indicates that a person’s demeanour is not a good indicator of honesty and that it is not usually possible to determine the value of the statement of a witness from non-verbal behaviour. Second, even if demeanour can be relied on in daily life to assess credibility (which is highly debatable) the situation is vastly different when the witness is giving evidence under scrutiny in the pressure cooker atmosphere of the witness box. The first point is compounded when it is appreciated advocates rarely allow witnesses the opportunity to give their accounts in an open, free manner. Objection is often taken even when a witness is trying to make a point by way of clarification.

Fact-finding does not depend on legal rules. It begins where the law ends. An experienced judge may be impressed by a particular witness after that witness has given evidence but it is unwise to make any comment until all the evidence – oral and documentary – is before the court. What a judge (or juror) can do with reasonable success is assess the character of the witness. Is the witness shy or confident, quiet or assertive, passive or aggressive, intelligent or otherwise? In a family law dispute the wife’s account of events may be that the husband has frequently behaved in an aggressive manner while in his affidavit material the husband portrays himself as the essence of civility and reasonableness. If in the course of giving evidence the husband shows himself to be quick to anger, argumentative and even aggressive at times it would usually lend credence to the wife’s account of events.

In summary it may be said that the qualities which make a judge a good judge are exactly the same qualities which make a juror a good juror. A judge should:

• Listen attentively;

• Avoid stereotyping;

• Avoid reaching a conclusion until all the evidence is in; and

• Attempt to see the evidence as a whole rather than a series of individual tableaux.

It is not so much a matter of assessing whether a witness is telling the truth on a particular issue but the extent to which that piece of evidence fits with undisputed or indisputable facts.

Justice Wells, then a judge of the South Australian Supreme Court, summed it up in a paper in 1983⁴ when he observed:

‘On the whole, judges as a race are disinclined to reveal, a fortiori, to discuss, the whole range of principle and subsidiary methods used when undertaking that very important judicial process of finding facts. Indeed, it is no exaggeration to say that behind a barrier, which varies from judge to judge, we tend to be secretive about the process – all processes are carried on behind an impervious screen, set up, I suspect, to protect our self esteem against charges of illogicality, or naivety, or bias, or ignorance, or simply lack of worldly wisdom (which would be the most hurtful charge of all).’

In his paper given 10 years earlier, Justice McKenna gave the following summary of his judicial method:

‘This is how I go about the business of finding facts. I start from the undisputed facts which both sides accept. I add to them such other facts as seem very likely to be true, as, for example, those records in contemporary documents or spoken to by independent witnesses like the policeman giving evidence in a running down case about the marks on the road. I judge a witness to be unreliable if his evidence is, in any serious respect, inconsistent with these undisputed or indisputable facts, or of course if he contradicts himself on important events. I rely as little as possible on such deceptive matters as his demeanour. When I have done my best to separate the true from the false by these more or less objective tests, I say which story seems to be the more probable, the plaintiff’s or the defendant’s.’

Polygraph testing

I cannot leave the subject of the assessment of facts without some reference to polygraph tests, or lie detector tests as they are more commonly known. I make no claim to have any degree of expertise in this field but have read a number of articles over the years, which allows me to make some observations with a modicum of confidence.

Polygraph testing does not distinguish lies and truth but simply measures physiological changes in the body in response to questions. These physiological changes include pulse rate, blood pressure and skin conductivity. As with any forensic discipline much depends on the questioner’s skills, qualifications and experience in interpreting results. Polygraph testing is not a magical cure-all, as some proponents claim, nor is it a mixture of voodoo and charlatanism, as contended by others. Published research reveals a high level of accuracy with the process. I content myself to make only two observations.

• If the results of polygraph testing were to become admissible in courts it is likely this would be the result of legislative intervention rather than by way of judge-made law.

• Throughout the world there appears to be resistance to the idea of delegating to a machine the task of determining conflicting facts no matter how much the human process may be flawed.

*The Hon Justice James Barry is a judge of the Family Court of Australia, based in Brisbane.

Endnotes

1. Printed in Irish Jurist Vol IX New Series p 1 and quoted by Lord Devlin in The Judge Oxford University Press Oxford 1979.

2. [1949] HCA 69; (1949) 80 CLR 626.

3. (1983) ALJ 679.

4. Wells J The Finding of Facts Canberra Judicial Conference 1983.