This approach takes account of such things as the witness’s dress, bearing
(that is, body language), appearance
584
and demeanour,
585
factors. To
illustrate, if the court looks at their demeanour they may disbelieve a witness
who appears “shifty”. Damned by a metaphor, their shifty appearance is taken
to speak of a shifty character.
Reliance on appearance was often trotted out by appellate courts to justify
their not upsetting a finding of fact unless it was palpably wrong. It was the
trial judge and not the appellate justices who had the advantage,
586
even the
“inestimable advantage,”
587
of observing the witness’s demeanour as they
heard them give
their evidence. This advantage enabled the court better to
determine if a witness was telling the truth.
There are problems with seeking truth by appearance. As the proverb reminds
us, appearances can be deceptive. The factors incorporated by appearance are
highly subjective, prompting the tongue in cheek comments that “with
appointment [to the bench] comes a capacity to discern truth from
falsehood,”
588
and that the ability to discern the truth just by looking at the
witness is a “judicial gift”.
589
Moreover, too easy a reliance on the advantages
enjoyed by a trial judge has a corollary. A judge can easily make their judgment
appeal proof by making a finding of fact based on demeanour.
590
Research now casts grave doubts in principle as to the reliability of
appearance as a general mechanism for establishing truth.
591
One basis for
these doubts is that the appearance and behaviour of a witness is open to
several explanations (as body language experts are the first to proclaim). Is a
witness who hesitates before answering a question in cross examination being
evasive by taking time to concoct an answer, are they thinking carefully so that
they may better answer the question, or are they puzzled and confused by the
584
Kirby (2003) in Sheard (2003) p 45
585
Jones v Hyde (1989) 85 ALR 23. Gibbs (1993) p 497 refers to this as “the subtle
influence of demeanour”. See also Kirby (2003) in Sheard (2003) p 45.
586
Gibbs (1993) p 497, citing Abalos v Australian Postal Commission
(1960) 171
CLR 167, 178-179
587
Ryan v Carstensz Properties (1979) 26 ALR 543 at 562
588
Kirby (2003) in Sheard (2003) p 46
589
Kirby (2003) in Sheard (2003) p 45. This concept of the “judicial gift” seems
to bear out the maxim neminem opportet esse sapientiorem legibus, that is no one
should be wiser than the law - see Kelly (1995).
590
Gibbs (1993) p 497
591
Kirby (2003) in Sheard (2003) p 46, citing Trawl Industries v Effem Foods (1992)
27 NSWLR 326, 348. See also Re (1983), Wellbourn (1991); Ellard (1996), Gibbs
(1993) p 4913.
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