The impact of trauma on witness credibility and reliability in civil trials: Reynolds v Higgins [2025] WASC 345
The dispute in Reynolds v Higgins [2025] WASC 345 is notorious. Not much more could helpfully be said about it.
But the Court’s decision is interesting for a different reason — how Justice Tottle approached the evidence of witnesses found to have been affected by trauma or psychological distress.
Submissions are routinely made at the end of civil trials about witnesses’ reliability and credibility based on observations and inferences flowing from ‘ordinary human experience’ or ‘common sense’.
Did a witness maintain their evidence in the face of their earlier inconsistent statements, was their account disjointed and filled with irrelevant details, were there significant gaps in their evidence?
Those kinds of matters often impact a judge’s assessment of the witness.
Yet, at the same time, courts have recorded warnings about judges having no special ability to assess witnesses’ credibility or reliability from their demeanour and non-verbal cues.
And the difficulties in assessing credibility and reliability do not stop there.
For, as Justice Tottle identified, trauma affects how memories are formed and recalled in giving evidence.
How trauma does so, though, is not realistically a matter of ‘common-sense’ or ‘ordinary human experience’. Its precise effects, to the extent they are known, have emerged from ongoing study by skilled researchers.
That is why, if the impact of trauma on a person’s memory were otherwise in issue in proceedings, then ordinarily expert evidence would be given by psychiatrists or doctors.
That makes the approach taken in Reynolds v Higgins all the more interesting for how the impact of trauma and psychological distress on the witnesses’ evidence was considered.
How did Justice Tottle approach the impact of trauma on witnesses?
Justice Tottle began by acknowledging that psychological distress experienced by a witness has the capacity to affect their memory.
His Honour quoted from an article published in the Canadian Bar Review concerning the effect of trauma on the encoding, retention and retrieval functions of memory.
The authors of that article set out their conclusions as to why two matters frequently relied on in assessing credibility and reliability — the existence of a witness’ prior inconsistent statements and demeanour — are unreliable indicia of veracity and reliability in a trauma-affected witness.
Helpfully, the authors set out a range of qualities of trauma-affected memories said to be predictable and to have been scientifically proven. They included:
- Traumatic memories ‘are fragmentary, disordered, disjointed, and often contain details that do not derive from experience’.
- ‘The memories of individuals who suffer trauma will often have “gaps”, and the memories that do form will focus on “several key ‘hotspot’ moments which will often be recalled out of sequence, and often only as part of an ongoing and unfolding dialogue or engagement”. These moments are typically hotspots because of their idiosyncratic relevance to the person, not because they are, by some objective measure, the most salient’.
- ‘Contrary to the normal process of memory retrieval, traumatic memories may be experienced as intrusive “flashbacks” that are “triggered involuntarily by specific reminders that relate in some way to the circumstances of the trauma” and experienced as if happening in the present. Despite their subjective intensity, flashbacks do not have greater reliability or immutability over time than regular memories’.
- ‘While “all memories can change with repeated retelling”, this phenomenon is heightened for those who have experienced trauma’.
- ‘Trauma can affect both the memory of the traumatic memory itself and autobiographical memory generally’.
The authors also make the point that trauma-affected witnesses’ ‘fragmented, non-linear, sparse traumatic memories stand “in direct opposition to common notions of what constitutes a ‘good’ victim account”. They also dramatically increase the chance that a traumatized witness will have made previous inconsistent statements… [T]raumatic memories are less likely to be believed due to the positive correlation between richness of detail and perceptions of credibility and reliability … a “tragic irony”’.
But, while ‘[s]ome trauma survivors exhibit many of [these] memory recall characteristics … others exhibit very few’.
As Justice Tottle identified, the potential effect of trauma on a witness’ memory has been recognised in the position already reached in the criminal jurisdiction. It may explain why a complainant has delayed making a complaint, and their demeanour and behaviour before doing so.
His Honour went on to observe that the difficulties frequently encountered in drawing inferences about a person’s state of mind are compounded when the person’s recollection is likely to have been adversely affected by trauma, or where other factors may have adversely affected a person’s memory. In those circumstances, the conclusion that a person is not merely mistaken in their recollection but is dishonest is not to be reached lightly.
And, where it was relevant, Justice Tottle considered that a party’s motives must be assessed against the background of the physical and psychological trauma suffered by them, including the long-term effects of traumatic experiences they have had.
What should this mean for our approach to witnesses in civil trials?
The nuance with which Justice Tottle approached the issue of the witnesses’ credibility and reliability in light of the trauma and psychological distress they were found to have faced is indicative of the care that should be taken more generally with trauma-affected witnesses’ evidence in civil trials.
It is unhelpful to deal with every witness, no matter their past experiences, as being part of one homogenous group.
Nor is relying on our ‘ordinary human experience’ or ‘common sense’ a sure guide to whether witnesses affected by trauma or psychological distress are reliable and credible in their evidence. Precisely the matters that courts have relied on to doubt witnesses’ evidence may, in fact, signify the credibility of their evidence of what they have experienced. Factors suggesting dishonesty rather than mistaken recollection may be unreliable.
But, conversely, there may be real additional doubt about the reliability of trauma-effected witnesses’ evidence on issues unrelated to the traumatising event they experienced.
That raises difficult questions about the approach we take to, and the submissions we can legitimately make about the evidence of witnesses affected by trauma or psychological distress. The aspects of a trauma-affected witness’ evidence that we would ordinarily criticise as incredible or unreliable might, in fact, strengthen the conclusion that the witness experienced the very thing we would submit did not happen.
Reynolds v Higgins, then, is a reminder of the care with which we should approach trauma-affected witnesses in civil trials, just as courts have increasingly been doing in their criminal jurisdiction.
