Chapter 5
Previous consistent statements

Continuing problems with section 35

5.33This section considers three interrelated issues which we consider require amendment to the Act:

  • What is a “statement” that engages s 35?
  • What is the status of “res gestae” under s 35?
  • What amounts to a challenge to a witness’s veracity or accuracy?

What is a “statement”?

5.34The Act (relevantly) defines a “statement” as “a spoken or written assertion by a person of any matter”.336  In some situations, the interpretation of this is clear. For example, in R v Barlien the Court of Appeal held that the evidence from the two complainants as to what they said to a close family friend after the offending allegedly occurred was a previous consistent “statement” and so engaged s 35(1).337  However, the Court of Appeal left open the more difficult situation where only the fact of complaint is led from a complainant,338  which had been held to be admissible in the pre-Act case of R v Turner.339

5.35We are aware that a practice then began whereby in sexual offence trials in which the complainant had made a “complaint” to someone (typically a friend or family member), prosecutors would lead from the complainant that after the alleged offending occurred he or she told someone “what had happened” (ie the fact of the complaint). The belief was that this was not a previous consistent “statement”, and so it would not be caught by the prohibition in s 35(1).

5.36However, when the question came before the Supreme Court in Rongonui v R, the majority concluded that such an approach still engaged s 35(1), stating:340

… The evidence in question, on any realistic view of its meaning, goes beyond the mere fact of the complainant having spoken to her friends. In context the evidence was of a spoken assertion by the complainant to her friends that she had been sexually violated by Mr Rongonui.

5.37The majority did, though, go on to make a distinction between the complainant telling someone “what had happened” and the complainant simply speaking to someone, which:341

… can be regarded as amounting only to evidence of conduct, rather than evidence of an assertion of some matter, and is admissible if the fact of her doing so is relevant to a matter in issue …

5.38 This distinction is not necessarily easy to apply, however. For instance, in O’Donnell v R the complainant gave evidence at trial that the morning after the sexual offending was alleged to have occurred she returned home, spoke to her father and then, as a result of this, he took her back to the house and confronted the appellant.342
5.39The Court of Appeal was able to distinguish this from Rongonui v R on the basis that the complainant did not say in court what she had told her father (either in detail or simply “what had happened”).343  Despite acknowledging that there was an “irresistible inference” that during the conversation the complainant had told her father she had been sexually offended against, the Court held that there was no previous consistent statement issue. The Court did agree, though, that the distinction they drew between this case and Rongonui v R may seem “somewhat forced or artificial.”344

5.40To summarise, there are broadly three classes of evidence relevant to this issue:

  • Detail of complaint – prima facie inadmissible.345
  • Fact of complaint – prima facie inadmissible.346
  • Fact of speaking – prima facie admissible.347
5.41And as R v O’Donnell shows, the dividing line between the latter two situations is not always clear.348

5.42It has been suggested to us that these interpretations frequently mean that there is a “hole” in the evidence, as the jury is often not told what happened immediately after the offending allegedly occurred (that is, when the complainant told someone about the incident). We agree that this is misleading, particularly as the jury will often hear what the defendant said soon after the alleged incident (if they are confronted with the allegations by the police or, as can be seen below, another person). All (or nearly all) cases rely on a complaint to come before court, so it is odd that the jury is left to infer how this actually happened.

5.43In any event, even if the three categories are being correctly dealt with, such fine distinctions are unsatisfactory.

Res gestae

5.44 Mahoney and others explain res gestae as “[l]iterally translated as ‘things done’, the res gestae exception was justified at common law on the basis that all the circumstances surrounding a relevant event should be admissible to give a true picture of what occurred.”349  There is no mention of such an exception in s 35 (or, indeed, anywhere in the Act) and at an early stage the Court of Appeal commented that it “appears likely that it was just overlooked”.350  The implication from the Court was that res gestae evidence was no longer admissible.
5.45However, the Supreme Court disagreed with this in Rongonui v R, the majority stating that “[t]here is nothing in the legislative history of the Act to suggest that Parliament meant to bring res gestae statements within the scope of s 35(1).”351  Although the majority’s discussion stemmed from a consideration of only one aspect of the res gestae exception, namely words spoken as part of the events in issue,352  they went on to discuss all three “principal categories”.353  Mahoney and others consider that it is “therefore likely that all three classes of res gestae statements will be held to fall outside the scope of s 35(1).”354

5.46The practical upshot of this is that a complainant will, for example, be able to give evidence that at the time they were assaulted they were calling out “I am being attacked”, but will not be able to give evidence that immediately after they were assaulted they told someone “I was just attacked”. As discussed above in relation to “detail of complaint”, “fact of speaking” and “fact of complaint”, such fine distinctions are unhelpful.

What is a “challenge” to a witness’s veracity or accuracy?

5.47As has been noted above, the Justice and Electoral Committee appear to have been operating under the belief that the changes it made to the subs (2) exception meant that it restated the common law.355  However, it has been noted that the Supreme Court has interpreted this exception “much more broadly than existed at common law”356  This has happened in (at least) the following two ways:357
  • There will nearly always be a challenge in sexual cases. For instance, in Rongonui v R the majority stated:358
… Most defences in sexual cases involve the proposition either that the alleged offending did not occur at all or that the conduct involved was consensual. The very nature of such defences must, at least implicitly, involve a challenge to the complainant’s veracity, on the basis of invention; that is a contrivance later in time than the events in issue.
  • The complaint need not be made before the event that is said to give rise to the fabrication. While the majority in Hart v R noted that, before the Act “[t]he great preponderance of authority suggested that in order to be admissible to rebut an allegation of invention the witness’s statement must have preceded the circumstances giving rise to and hence the alleged invention”,359they went on to hold that:360
… in interpreting s 35(2) the courts should not follow the general common law approach as to timing when that is not mandated by the statutory language. They should anchor themselves firmly in the statutory concept of the previous consistent statement being necessary to “respond” to the claim of invention. Whether the requirements of necessity and response are satisfied do not depend rigidly on timing issues. A consistent statement made later than the occasion of the claimed invention may, depending on its contents and the circumstances of its making, have sufficient cogency in rebutting the claim of invention to enable it to be viewed as a response to the claim within the meaning and purpose of s 35(2). We would therefore hold that to be admissible the previous consistent statement does not have to precede the occasion or motive of the claimed invention.
5.48 When these two factors are coupled with the removal of any requirement that the complaint be “recent” (ie made at the first reasonable opportunity), it can be seen that complaint evidence in sexual cases will now almost always be admissible (subject to ss 7 and 8). This has been recognised by the Court of Appeal.361

Summary of problem

5.49There are two main concerns with the operation of s 35. The first relates to the interpretations of the Supreme Court. When the “fact of complaint” was brought within the ambit of s 35(1),362  this created an artificial “hole” in the evidence that is presented to the court. In part to get around this, it seems the courts have relaxed the s 35(1) prohibition by engaging in fine distinctions as to what a “statement” is and excluding res gestae from its ambit. And when subs (1) is engaged, the courts have interpreted subs (2) broadly, in particular as to when there is a challenge to veracity or accuracy based on a claim of recent invention. Ironically, this has led to much more being admitted, at least in sexual cases, than simply the fact of complaint.
5.50This has led to the second problem, namely that the section appears to be ill-equipped to procedurally deal with the above approach. This is noted by the majority in Rongonui v R, with Tipping J stating:363

… Thus in most [sexual cases] it is likely that the evidence which the complainant would have been able to give in evidence-in-chief, as recent complaint evidence at common law, will now be admissible, in re-examination, as a previous consistent statement under s 35(2).

5.51While the Court went on to comment that in some situations the required challenge may have become apparent in a sufficiently clear way before trial, or in counsel’s opening, so that the complaint evidence can be given in evidence-in-chief, they concluded that the “practical implications of bringing “recent complaint” evidence within the law relating to previous consistent statement evidence do not appear to have been given much attention in the formulation of the change.”364
5.52One way of getting around the awkward way that previous consistent statement evidence is now to be given has been for the prosecution to seek a ruling under s 344A of the Crimes Act 1961365  that the previous consistent statement is admissible at trial on the basis that the witness’s veracity or accuracy will be challenged on the basis of recent invention.366  However, this will not be possible in every case, for example where the defendant has declined to make a statement and the defence has not been signalled, and it has recently been held that a bare “not guilty” plea will not be enough.367
336Section 4(1).
337R v Barlien, above n 300, at [56].
338At [53].
339R v Turner [2007] NZCA 427 (leave to appeal refused: Turner v R [2008] NZSC 11).
340Rongonui v R, above n 313, at [33] per Tipping J.
341At [33] per Tipping J.
342O’Donnell v R [2010] NZCA 352.
343At [38].
344At [39].
345R v Barlien, above n 300.
346Rongonui v R, above n 313.
347Rongonui v R, above n 313.
348R v O’Donnell, above n 342.
349Richard Mahoney and others The Evidence Act 2006: Act & Analysis (2nd ed, Brookers, Wellington, 2010) at 151.
350R v Barlien, above n 300, at [37].
351Rongonui v R, above n 313, at [46].
352At [45] per Tipping J.
353At [47] per Tipping J. Briefly, these are: (a) spontaneous utterances accompanying an event; (b) contemporaneous statements explanatory of an act; and (c) statements concerning a present physical or mental condition.
354Mahoney and others, above n 349, at 152.
355Evidence Bill 2005 (256-2) (select committee report) at 5.
356Mahoney and others, above n 349, at 157.
357At 157-158.
358Rongonui v R, above n 313, at [43].
359Hart v R, above n 309, at [47]. 
360At [53] (footnote omitted).
361H (CA671/2011) v R [2012] NZCA 102 at [13].
362Rongonui v R, above n 313, at [33] per Tipping J.
363Rongonui v R, above n 313, at [43].
364At [44].
365The equivalent provisions in the Criminal Procedure Act 2011 are s 79 (for judge-alone trials) and s 101 (for jury trials), neither of which are in force yet.
366See, for example, R v B (SC 88/2010), above n 317.
367H (CA671/2011) v R, above n 361, at [10].