The idiosyncratic vagaries of memory in unfair dismissals


Here are the thoughts of a member of the Fair Work Commission on the reliability of memory in witnesses.

“It is not possible to reconcile the different versions of events of the conversation that occurred during the telephone call on 20 March 2017. The telephone conversation occurred 4 months prior to the evidence being given in the Commission. It is in this context that we should remember that “one of the greatest misconceptions we continue to have about memory is that it is largely an accurate recorder, faithfully transposing into our brain events as they occur”. Judge Penelope Wass SC, “Would I lie to you? (an examination of eyewitness testimony in a criminal trial)”, Legal Aid (NSW) Conference, 2016. 19

It is not.

Rather, the,

“…process of experiencing or acquiring, laying down or storing memory and then reproducing an account, all of which is involved in “recalling or “remembering”, and therefore giving evidence in a … trial, is disconcertingly malleable. It is at best, almost always, a rough reconstruction with inaccuracies and distortions.”

De Maria v BiltBeta Constructions (2017) FW 5159 delivered 5 October 2017 per Johns C