in mind the possible effect of rumours and discussions and the capacity of the human mind for ex-post facto rationalisation of events and the phenomenon of false memories.
164 In Watson v Foxman (1995) 49 NSWLR 315 (Watson v Foxman) by McLelland CJ in Eq said (at 319):
Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
(See also Moubarak by his tutor Coorey v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218, at [77] per Bell P; and Gautam v Health Care Complaints Commission [2021] NSWCA 85 (Gautam v Health Care Complaints Commission) at [21] per Leeming JA.)
165 The effect of the passage of time and intervening matters, including rumours was addressed by McHugh JA in the well-known case of Herron v McGregor [1986] 6 NSWLR 246 said (at 254–255):
Memories fade. Relevant evidence becomes lost. Even when written records are kept, long delay will frequently create prejudice which can never be proved affirmatively. As the United States Supreme Court said in Barker v Wingo (at 532) "what has been forgotten can rarely be shown". In some cases delay makes it simply impossible for justice to be done: Birkett v James (at 317-318, 327). In R v Lawrence [1982] AC 510 at 517, Lord Hailsham LC pointed out that: "Where there is delay the whole quality of justice deteriorates." The difficulties in ascertaining the truth about a matter after time has done its work are vividly portrayed by Street CJ in the Report of the Royal Commission of Inquiry into Certain Committal Proceedings Against K E Humphreys (July 1983). His Honour said (at 9–10):
"In the intervening five or six years, rumours waxed and waned. In some cases suspicion underwent subtle change to belief, which itself progressed to reconstruction, which in turn escalated to recollection. No presently stated recollection could be safely assumed not to have progressed upwards and not to be the product of one of these earlier stages. The sheer frailty of human memory of necessity required a most anxious and critical appraisal of the evidence of the witnesses, no matter how credit-worthy they might be.
It became apparent that in the years since August 1977 the recollections even of those with undoubted first-hand knowledge have in some instances faded, in some instances fermented, and in some instances expanded. Moreover, in many cases the realisation of the significance — indeed, the enormity — of what had occurred has tended to transmute into a more or less cynical acceptance of what had, or was believed or rumoured to have, taken place."
