Contents

Chapter 5
Previous consistent statements

Introduction and background

5.1 As discussed in chapter 3, the former rule against hearsay prevented out of court statements being admitted to prove the truth of their contents. This meant that generally, a witness’s previous statement could not be offered in evidence if it was consistent with the witness’s testimony.291  While there were certain exceptions to this that would render a previous consistent statement admissible, such as “recent complaint” evidence and statements forming part of the res gestae, the statement could still only be used to bolster the witness’s credibility, rather than to prove the truth of its contents.292

5.2Prior consistent statements are now covered by s 35 of the Act, which provides:

35 Previous consistent statements rule

(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.
(2) A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.
(3) A previous statement of a witness that is consistent with the witness’s evidence is admissible if—
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) the statement provides the court with information that the witness is unable to recall.

Development of previous consistent statements in the Evidence Code

5.3During the development of its Evidence Code the Law Commission ultimately proposed to retain the general rule, but suggested significant changes for the exceptions. For instance, “recent complaints” would now be treated like any other previous consistent statement of a witness. Further, once admitted, a previous consistent statement could be used both “to support the truthfulness and accuracy of the witness and to prove the truth of the contents of the statement.”293
5.4 The corresponding provision, in Evidence: Code and Commentary, provided that:294

37 Previous consistent statements rule

A previous statement of a witness which is consistent with the witness’s evidence is not admissible except

(a) to the extent necessary to meet a challenge to that witness’s truthfulness or accuracy; or
(b) if the statement will provide the court with information which that witness is unable to recall.
5.5The Law Commission said of its proposed provision that:295

… “Consistent” does not simply mean the lack of inconsistency: there must be something in the witness’s testimony with which the previous statement is consistent. The intention of s 37 is to prevent the parties from inundating the courts with voluminous amounts of repetitive material in order to shore up a witness’s consistency. So if the witness’s testimony is silent on a matter that is the subject of a previous statement, or if the witness’s testimony is different from the content of a previous statement, s 37 will not exclude evidence of the previous statement.

5.6The wording of this section was slightly different when the Code became the Evidence Bill, but the effect was largely the same:296

31 Previous consistent statements rule

(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.
(2) A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s truthfulness or accuracy.
(3) A previous statement of a witness that is consistent with the witness’s evidence is admissible if–
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) the statement provides the court with information that the witness is unable to recall or able to recall only imperfectly.
(4) A statement that is otherwise admissible under subsection (3) may not be admitted in evidence unless leave is sought and obtained from the Judge prior to the admission of the statement.

Amendments made by the Justice and Electoral Committee

5.7When the Evidence Bill was reported back from the Justice and Electoral Committee, various changes had been recommended. Of most relevance, an amendment to sub-cl (2) to include, after the word “accuracy”, the phrase “based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness” had been made.297
5.8The Select Committee explained that it recommended this change because it considered that the sub-cl (2) “exception in the bill as introduced is unworkable and too broad”.298  In its view, the suggested amendment “would ensure a workable rule, and limit the circumstances in which previous consistent statements could be used to those available under current law.”299

5.9These recommended amendments were accepted by Parliament and the Evidence Bill was ultimately passed without further change to this section.

R v Barlien and Law Commission’s subsequent advice

5.10 The majority of the Evidence Act 2006 came into force on 1 August 2007. One of the first jury trials to take place after its commencement was that of Eivin Barlien, who was alleged to have sexually offended against three young girls. Mr Barlien was convicted and subsequently appealed against his conviction. The primary ground of appeal was that the trial judge should not have admitted the evidence of two of the complainants’ previous consistent statements.300
5.11 In dismissing the appeal, the Court of Appeal identified a number of concerns that it had with the final version of s 35 and referred the matter to the Law Commission and the Ministry of Justice for consideration.301  As a result of this, the Law Commission duly reported to the Minister of Justice on 8 July 2009.302
5.12 In its advice to the Minister, the Law Commission commented that the Select Committee that settled on the wording of s 35 incorrectly thought that it was codifying the existing law.303  The Law Commission then stated that:
7. In particular, the wording it adopted excluded two types of previous consistent statements that had been generally admissible prior to the Evidence Act 2006:
a. a complaint of a sexual offence relatively soon after its occurrence (a “recent complaint”);
b. a statement that was sufficiently close to the offence to be regarded as part of the surrounding circumstances (known as the “res gestae”).

Problems with section 35

8. The exclusion of statements in these two categories has provoked criticism. More generally, the restrictive nature of the requirements that must be met before a statement is admissible under section 35(2) has produced a number of practical problems and anomalies.
9. In summary, these problems and anomalies are:
a. The requirement that there be a challenge to truthfulness and accuracy based on a previous inconsistent statement or a claim of recent invention has led to the exclusion of some highly relevant and reliable previous consistent statements (such as the content of 111 calls). This is contrary to the Act’s fundamental principles.
b. The Act has different rules for determining the admissibility of consistent and inconsistent statements, but there are often real difficulties in determining whether a statement is consistent or inconsistent (or an inseparable mix of the two).
c. Neither party may know in advance of a witness’ evidence whether a previous statement will be consistent or inconsistent with that evidence. This has significant implications for victims and witnesses, who may need to remain on standby in case they are required to give evidence of a previous statement.
d. If there is a perceived inconsistency between the evidence of a witness (including the complainant) and a previous statement, defence counsel is faced with a dilemma in knowing whether to cross-examine on that inconsistency (since it will open the door to the admission of other previous consistent statements).
e. If they do not do so, this does not stop them from challenging the credibility of the witness in some other way without opening the door to the admission of such statements. This seems an arbitrary and untenable distinction.
f. Trial judges have sometimes been excluding evidence of not only the substance of a complaint of an offence, but also the fact that it was made. This has meant that juries have not been told, for example, why the police were called. (However, the Court of Appeal two weeks ago in R v Rongonui [2009] NZCA 279 clarified that the fact that a complaint was made is admissible).
5.13While the Law Commission considered these problems to be “real and significant”, it did not have any evidence that they were producing wrongful trial outcomes. Rather, they were causing “significant practical problems in the conduct and administration of trials” and, as such, the Law Commission considered that they needed to be addressed “as a matter of high priority”.304
5.14 The Law Commission’s proposal was that all previous statements (both consistent and inconsistent) would be admissible on the following conditions:305
  • it must be the statement of a witness (who is then available to be cross-examined on it);
  • it must be relevant and not be unduly prejudicial or needlessly prolong proceedings (the general principles set out in ss 7 and 8 of the Act);
  • it must in addition be substantially helpful in proving or disproving anything that is of consequence to the proceedings;
  • it will be inadmissible if the judge is satisfied that the evidence of the statement is likely not to be an accurate account of what was said.

5.15Additional changes the Law Commission suggested were:

  • notice must be given by the prosecution or defence if they intend to lead evidence of the previous statement of a witness (or leave of the judge will be required);306
  • s 35 should make it clear that “in assessing the admissibility of a complaint in sexual cases, delay in the making of the complaint, or the making of other previous inconsistent statements, should not in itself render the complaint inadmissible because in such cases there may be good reasons for the delay or inconsistency”;307and
  • it should be confirmed that statements admitted under s 35 are admissible to prove the truth of the contents of the statement.308

Subsequent events

5.16The Law Commission’s recommendations were not subsequently acted upon. However, a little over a year later the Supreme Court delivered two judgments (on the same day) that fundamentally changed the approach trial courts were to take to the admissibility of previous consistent statements.

5.17 The first of the companion judgments was Hart v R.309  Elias CJ summed up what happened in the trial as follows:310

The complainant in a case of sexual offending was cross-examined in order to provide a basis for the defence case that she had invented the story in order to qualify for a lump sum ACC payment. Having ascertained that the defence intended to close on invention with this suggested motive, the trial Judge permitted the prosecutor in re-examination to lead from the complainant evidence of when she first became aware of her potential eligibility for an ACC lump-sum payment and her disclosure of the sexual offending to a family friend before that time. The Crown was also permitted to call the family friend, who gave evidence that the complainant had told him about the offending in an apparently spontaneous response to unrelated family stress and confirmed the timing of the disclosure as being some months before the time at which the complainant had said she knew of her eligibility for compensation.

5.18Her Honour then went on to describe the issue as:311

… whether the statement made to the family friend should have been excluded in application of s 35(1) of the Act or whether it was admissible within the exception in s 35(2) as an answer to an attack on the complainant’s veracity based on recent invention of the account of the incident given in her evidence to the court.

5.19The Supreme Court unanimously dismissed the appeal, holding that the statement was properly admitted pursuant to s 35(2).312
5.20 The second case was Rongonui v R.313  This case dealt with an appeal by Mr Rongonui against his conviction on two counts of sexual violation. At trial, the complainant had been permitted to give evidence that, soon after the alleged offending, she had told her friends “what had happened”. On appeal, it was argued that this was a previous consistent statement and should have been excluded by s 35(1) of the Act.
5.21The majority of the Supreme Court (Blanchard, Tipping, McGrath and Wilson JJ) considered that the statement was caught by s 35(1),314  although they would have applied the proviso to s 385(1) of the Crimes Act 1961 (ie that no miscarriage of justice arose from its admission) on this ground of appeal.315  On the other hand, Elias CJ was of the opinion that the evidence that the complainant told her friends “what had happened” was part of the events at issue and, as such, did not fall into s 35(1).316  The appeal was unanimously allowed on a different ground of appeal and a retrial ordered.
5.22 There have since been three Supreme Court cases that have considered s 35 in detail.317  R v B (SC88/2010) involved a pre-trial appeal against a decision in the District Court that a previous consistent statement of a complainant of sexual offending could be led at trial.318  The basis for the first instance ruling was that, in the defendant’s video interview with the police that would be played at trial, there was a challenge to the complainant’s veracity based on recent invention, and so s 35(2) was engaged.
5.23The Court of Appeal had allowed the appellant’s appeal on the basis that the complainant was not a witness yet so s 35(2) could not have been triggered.319  The Crown appealed to the Supreme Court, who allowed the appeal on the basis that the ruling in the District Court pursuant to s 344A of the Crimes Act 1961 was provisional, and that by the time it came to be applied at trial the complainant would be a witness.320
5.24Singh v R involved the (more unusual) situation of defence counsel wishing to introduce a previous consistent statement of a hostile Crown witness (the complainant) through re-examination of the defendant.321  This had been refused at trial, with one of the bases being that it was prohibited by s 35, a finding which was upheld by the Court of Appeal.322  The Supreme Court found that the documents were not “necessary” to respond to the challenge to the witness’s veracity and, citing Hart v R, that they were certainly not “an answer” to that attack.323  The appeal was dismissed.
5.25B (SC114/2010) v R, on the other hand, followed a similar course to the other cases in requiring a determination as to whether the complainant’s veracity had been challenged, based on a claim of recent invention, thus allowing a previous consistent statement to be admitted to the extent that it was necessary to respond.324  Citing Rongonui v R, Hart v R and R v B (SC88/2010), the Supreme Court found that the statement had been properly admitted, and dismissed the appeal.325
291Law Commission Evidence: Volume 1 – Reform of the Law (NZLC R55, 1999) at 40.
292At 40.
293At 41 (original emphasis).
294Law Commission Evidence: Volume 2 – Evidence Code and Commentary (NZLC R55, 1999) at 98 and 100.
295At 99.
296Evidence Bill 2005 (256-1).
297Evidence Bill 2005 (256-2).
298Evidence Bill 2005 (256-2) (select committee report) at 5.
299At 5.
300R v Barlien [2008] NZCA 180, [2009] 1 NZLR 170 at [2].
301At [73].
302Letter from Warren Young and Val Sim (Law Commission) to Simon Power (Minister of Justice) regarding R v Barlien [2008] NZCA 180 and section 35 of the Evidence Act 2006 (8 July 2009).
303At [6].
304At [10].
305At [16].
306At [17].
307At [20]. 
308At [21].
309Hart v R [2010] NZSC 91, [2011] 1 NZLR 1.
310At [2].
311At [3].
312The Supreme Court’s reasoning will, where relevant, be discussed later in this document.
313Rongonui v R [2010] NZSC 92, [2011] 1 NZLR 23.
314At [47] per Tipping J.
315At [50] per Tipping J.
316At [16].
317R v B (SC 88/2010) [2010] NZSC 160, [2011] 2 NZLR 82; Singh v R [2010] NZSC 161, [2011] 2 NZLR 322; B (SC 114/2010) v R [2011] NZSC 64.
318R v B (SC 88/2010), above n 317.
319B (CA 313/2010) v R [2010] NZCA 326, (2010) 25 CRNZ 6.
320R v B (SC 88/2010), above n 317, at [10].
321Singh v R, above n 317.
322Singh v R [2010] NZCA 144.
323Singh v R, above n 317, at [54]–[55].
324B (SC 114/2010) v R, above n 317.
325Rongonui v R, above n 313; Hart v R, above n 309; R v B (SC 88/2010), above n 317.