Prior Consistent Statements - Structure or Answer PDF

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Prior Consistent Statements – Structure of Answer...

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Nick Dowse

Prior Consistent Statements

Prior Consistent Statements – Structure of Answer 1. There is a general rule that a party cannot lift themselves up by their own bootstraps to enhance credit (R v Connolly). As aspect of this rule is that a party cannot use “self-serving” prior consistent statements to enhance credit (Britton v Cmr for Road Transport). 2. Prior = before the case 3. Consistent = what you said before and what you are saying now is the same 4. Statement = statement that relates to the facts in issue. 5. Exceptions a. Fresh Complaints in Sexual Offences i. At CL, sexual offence should be complained about at earliest reasonable opportunity (Camelleri). ii. Position modified under statute in Qld by s 4A of Criminal Law (Sexual Offences) Act 1978 (Qld) 1. Evidence of how and when any preliminary complaint is admissible no matter when the preliminary complaint was made (s 4A(2) CLSOA). a. Preliminary complaint = any statement made prior to a formal witness statement to polce. b. Eg: to parent, school teacher, friend, counsellor 2. Judge cannot warn jury that complainant’s evidence less reliable due to lapse of time between offence and preliminary complaint (s 4A(4)). a. Preserves the CL rule that the preliminary complaint only goes to the complainant’s credibility, and is not direct evidence of the offence (R v RH). 3. Court can still exclude if would be unfair to defendant (s 4A(3)). iii. Therefore, witnesses able to lead prior consistent, self-serving statements under examination in trial in relation to a sexual offence (s 4A(1) CLSOA). b. Previous identification of a person c. Statutory exceptions (s 92, 93, 93A QEA) i. S 92 = admissibility of documentary evidence as to facts in issue in civil proceedings only ii. S 93 = Admissibility of documentary evidence as to facts in issue in criminal proceedings only iii. S 93A = Statement made before proceeding by child or person with an impairment of the mind d. Res Gestae i. See Hearsay notes. e. Rebutting Allegations of Recent Invention i. Where cross-examiner puts to a witness that their story is an invention (fabrication). ii. OK for witness to show that they made a prior consistent statement, thereby rebutting the allegation of a recent invention (Nominal Defendant v Clements). iii. To allow the prior consistent statement into evidence, the cross-examiner needs to go further than just “shaking” the witness’s credibility (Britton), the cross-examiner must make an imputation clearly and unequivocally that the witness is not speaking from his own recollection of events (Nominal Defendant v Clements). iv. Warning to be given to jury so they don’t incorrectly regard the content of the prior statement evidence of the facts stated (Nominal Defendant v Clements per Windeyer J). v. Evidential Value: A previous statement made by a person proved for the purpose of rebutting a suggestion that the person’s evidence has been fabricated shall be admissible as evidence of the truth of its contents: s 101(1)(b) QEA.

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