Six Impossible Things Before Breakfast
In "Alice in Wonderland" Alice and the Queen are in conversation. Alice says "There's no use trying, one can't believe impossible things." The Queen replies "I dare say you haven't had much practice. When I was younger, I always did it for half an hour a day. Why, sometimes I've believed as many as six impossible things before breakfast".
Perhaps fortunately for them, our judges are not usually asked to believe impossible things before breakfast but often, after that, they are.
One of the things our clients frequently ask is "how do I prove I'm telling the truth?" In almost all family law issues that a judge has to decide, "proof" means evidence that demonstrates what our client needs to show on the balance of probability, that is, whether the fact in issue is more likely than not to be true.
This becomes very difficult where two people tell completely different stories about the same event and, as you may imagine, this is a not infrequent occurrence. A recent case sets out the way in which a judge goes about trying to establish who is telling the truth (Wao and Chou (2) [2018] FamCA542).
The parties were in dispute about the facts surrounding the signing of a Financial Agreement. The husband and the wife told completely different stories about what happened when they were signing.
Very usefully, the trial judge set out some propositions about how judges are supposed to reach conclusions about who is telling the truth:
The duty of a witness to answer questions responsively involves not only a negative duty (not to volunteer material for which the question does not call) but also a positive duty (to proffer all material within the witness's knowledge for which the question does call);
It is a serious matter to reach the conclusion that a party witness has failed to comply with the duty to tell the whole truth;
The judge has to look at the consistency of the evidence by the witness with what is agreed, or clearly shown by other evidence, to have occurred;
The judge has to look at the internal consistency of the witness's evidence: whether it all hangs together;
The judge has to look at consistency with what the witness has said or sworn to on other occasions; an example might be if he tells a bank he has no debts, but tells the court he owes his cousin $500,000;
The believability of the witness in relation to matters nothing to do with the case: an example might be if, in a family law case, the witness was proved to have committed offences of dishonesty quite unrelated to the case;
The demeanour of the witness: did the witness get angry, have long pauses before answering difficult questions, resort to failures of memory, break out into a sweat and so on.
These are useful guidelines to remember. However one must also remember that judges are simply human beings doing their best to understand and draw conclusions from all of those matters about the story being told.
What a judge cannot use is not so stated, but we are aware of a case where a judge long since retired drew conclusions about the believability of a witness from the behaviour of a friend of his sitting in the back of the court. Fortunately, in that case, an appeal court overturned the judge's conclusions.
