Demeanour – don’t be fooled!
Thinking about how a person’s demeanour makes him/her more or less believable. The original context is a person giving witness evidence in Court or Tribunal. But the issue is more general. We all regard a person’s demeanour, and this affects, for instance, whether we believe what he or she is saying. At its most clumsy, someone shouts louder to try to convince his hearers of the truthfulness of his words.
I have to say I am not great at this. I lean away from cynical and towards gullible. So I can be deceived by a person’s demeanour. It has been helpful reading the extracts below and attending training on this point.
In a Judicial Review case, relating to allegations of misconduct against a cosmetic surgeon, the High Court gave some time to consider how much weight a Court should give to a person’s demeanour in giving evidence. Although the context is legal and medical there is much here to consider for our day-to-day lives.
I have quoted several paragraphs and highlighted (I hope) the most relevant comments in bold text. There is a link to the full decision at the end.
38???????In any event, I regret to say, in my judgment the Tribunal's reasoning process is vitiated by at least three fundamental errors of approach. First, the Tribunal approached the resolution of the central factual dispute by starting with an assessment of the credibility of a witness's uncorroborated evidence about events ten years earlier, only then going on to consider the significance of unchallenged contemporary documents. Secondly, the Tribunal's assessment of the witness's credibility was based largely if not exclusively on her demeanour when giving evidence. Thirdly, the way the Tribunal tested the witness evidence against the documents involved a mistaken approach to the burden of proof and the standard of proof.
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40 ??????this is not all new thinking, as the dates of the cases cited in the footnote make clear.?Armagas v Mundogas, otherwise known as?The Ocean Frost, has been routinely cited over the past 35 years. Lord Bingham's paper on "The Judge as Juror" (Chapter 1 of?The Business of Judging) is also familiar to many. Of the five methods of appraising a witness's evidence, he identified the primary method as analysing the consistency of the evidence with what is agreed or clearly shown by other evidence to have occurred. The witness's demeanour was listed last, and least of all.
41???????A recent illustration of these principles at work is the decision of the High Court of Australia in?Pell v The Queen?[2020] HCA 12. That was a criminal case in which, exceptionally, on appeal from a jury trial, the Supreme Court of Victoria viewed video recordings of the evidence given at trial, as well as reading transcripts and visiting the Cathedral where the offences were said to have been committed. Having done so, the Supreme Court assessed the complainant's credibility. As the High Court put it at [47], "their Honours' subjective assessment, that A was a compellingly truthful witness, drove their analysis of the consistency and cogency of his evidence …" The Supreme Court was however divided on the point, and the High Court observed that this "may be thought to underscore the highly subjective nature of demeanour-based judgments": [49]. The High Court allowed the appeal and quashed Cardinal Pell's convictions, on the basis that, assuming the witness's evidence to have been assessed by the jury as "thoroughly credible and reliable", nonetheless the objective facts "required the jury, acting rationally, to have entertained a doubt as to the applicant's guilt": [119].
42 ??????Comparison of the passages from?Kimathi?that I have highlighted at [39] above with the parts of the Tribunal's reasoning that I have highlighted at [30] reveals the following flaws. Instead of starting with the objective facts as shown by authentic contemporaneous documents, independent of the witness, and using oral evidence as a means of subjecting these to "critical scrutiny", the Tribunal took the opposite approach, starting with Patient A's evidence. It is an error of principle to ask "do we believe her?" before considering the documents. Further, the Tribunal's approach to the oral evidence of Patient A involves the second of the two "common errors" identified by Leggatt J in?Gestmin.?Reliance on a witness's confident demeanour is a discredited method of judicial decision-making. Paragraphs [29] and [33] of the Determination provide a clear illustration of the "fallacy" identified by Leggatt J. These flaws are all the more significant given the antiquity of the events in dispute, which were ten years old at the time of the hearing. As Mostyn J emphasised in the?Carmarthen?case, the older the events, the more important it is to hold fast to these principles of reasoning. The flaws are surprising, as Mr Counsell had expressly referred the Tribunal to the passage from?Kimathi?that I have cited. I would add two points. First, the second emphasised sentence in paragraph [33] does not clearly or sufficiently acknowledge the fluidity of memory, or the fact that an honest witness can construct an entirely false "memory". Secondly, the fallacy that confident evidence from an honest witness is accurate evidence is starkly illustrated by Patient A's insistence that the authentic documents shown to her in cross-examination must have been faked. It is plain that her only basis for saying so was that the documents were at odds with what she was saying. She was seeking to "explain away" the problem in a way that maintained her belief in her own account, a classic symptom of cognitive dissonance.
The full decision is here: www.bailii.org/ew/cases/EWHC/Admin/2020/1974.html