NSW use of "I am informed by... and believe..." to tell a lie but not perjure oneself?

[faustus]

Greetings, I have an affadavit from someone at a government agency. Their affadavit is already very inconsistent and not very believable. But there is something very peculiar and amusing.

Alice states the following:

"However, I am informed by Bob, and believe, that prior to Event X, the department did a whole bunch of things precisely by the book involving Buzzword A, Buzzword B, Buzzword C. This includes... Big Fat Lie."


I think that what Alice has done is blatant because Bob is a minor character. It is as though Bob can lie to Alice and she can state her belief in that lie, without having perjured herself. Is this a tactic that some people do?


I was hoping to get some advice on how to most effectively make Alice someone who cannot be believed. I have come up with 3 options below, any suggestions appreciated!


---

1. Demonstrate the absurdity of the claim in humiliating detail, then say "Alice should not believe everything that Bob has been telling her"
This is what I have done

2. As above, but say "Bob does not sound like a very credible person to believe"
This is my way of saying that Alice is using Bob to lie without actually saying that.

3. As above, but directly say that I think that Alice is using Bob in order to lie because the claim is too ridiculous
This is what I am thinking of saying

 

[Rod]

Sounds very much like hearsay to me and you should ask for that paragraph to be declared inadmissible. Then argue in the alternative .....

What a person believes has no place in an affidavit. No need to get clever as the law has clear rules on hearsay evidence.

I'm surprise government lawyers allowed this kind of paragraph in an affidavit.

You may benefit from legal advice as you appear to responding to a court claim/response.

 

[Rob Legat - SBPL]

Firstly, this form of statement in an affidavit is fairly usual. An affidavit has to conform to the usual rules of evidence, and that includes the rule against hearsay. Here it appears that Alice does not have direct knowledge of an event - but Bob does. Alice cannot depose in her affidavit as to whether or not the event occurred as she did not directly witness it happening. She can only raise the things that are circumstantial to the event - not the event itself. Accordingly, she can state that Bob told her it happened (because she had that conversation with Bob), and she can state that she believes Bob so long as there is nothing evident to her to contradict his story. The second part is rather tenuous, but not uncommon. It would be more uncommon not to see it, and possibly raise some questions.

If Alice's role doesn't involve the event itself, but rather the flow on from the event, it would be reasonable for her to give her affidavit in this way. Her basis for belief that what Bob has said as being true could be as simple as: it's her role/she commonly sees the flow on from events of that type, she saw the flow on effects for the event in question, and those flow on effects accorded with the usual manner for other events.

The thing is - her affidavit is not direct evidence of the event happening. It is supporting at best. The evidence of the event occurring should come from Bob, and he should be called to give it. If he's not called by the respondent in the matter, you should seek to subpoena his evidence.

To your options. Succinctly, I suggest you don't do any of these options for the following reasons:

1. Attacking a witness, especially without justification, and especially when they are a public servant, will quickly earn you the anger of the court. Your example statement is also argumentative - it's not for cross examination (if that was your thoughts), but more for submissions - however you will still need something to base it on.

2. Attacking the credibility of someone is a technical area, and is fraught with danger if they are not a witness who is present in order the be cross examined. You would be better placed to raise in your submissions that Alice did not witness the event and is fully reliant on Bob, and Bob has not appeared as a witness. The fact that someone should be called as a material witness by the other party, and has not been, is a well established legal principle for the making of an argument that had the person given evidence it would not have assisted the other party (i.e. likely would have supported your case). This principle arises from the decision of Jones v Dunkel.

3. This is not something you can easily raise in cross examination without making a hash of it. You would be better taking a line of questioning such as:

- [refer Alice to the relevant paragraph in her affidavit] You state here in your affidavit that Bob told you [event] happened, correct?
- So, you didn't see [event] happen?
- You weren't a participant in the [event]?
- You weren't directly involved in [event] happening?
- So your statement that [event] occurred is based solely on the word of Bob, isn't it?

By doing that, and then drawing attention to Bob not being called to give evidence, you can credibly submit that there is no direct evidence presented to the court that the event occurred.

Without more knowledge, going much further than the above line of questioning is dangerous as you might inadvertently allow Alice to say something that bolster's Bob's reliability.

 

[Rod]

Being a 'usual kind of statement' doesn't make it right

@Rob has explained it well.

I also agree how you examine the witness is very important and is a double edged sword that you should understand how to wield effectively. This is where the advocacy from an experienced lawyer/barrister helps win cases where there is so some doubt and uncertainty over some events.