5.53We set out two options for meeting the problems raised with s 35 below, along with the advantages and disadvantages of each. We conclude by setting out the Law Commission’s preferred approach.
5.55This option involves a redraft of s 35 so that previous consistent statements would generally be inadmissible, except in the following circumstances:
5.57To deal with the timing issues raised above, under this option we would recommend a notice provision, modelled on the hearsay notice provision, requiring a party seeking to offer a previous consistent statement in a criminal proceeding under paragraphs (a), (c) or (d) above to provide written notice to every other party. This will ensure that any objections to the evidence (for instance, on the grounds that the other party does not intend to challenge the witness’s veracity or accuracy or that the statement does not form an integral part of the events in issue) are dealt with pre-trial. If the statement is ruled admissible, it can then be offered during the witness’s evidence-in-chief, avoiding the statement being unduly emphasised by coming out in re-examination, and ensuring other parties have the opportunity to cross-examine the witness on the statement.
5.58It is not proposed that the exception in paragraph (b) be subject to the notice requirement. This will mean that the fact of a complaint will be automatically admissible (subject to the general tests in ss 7 and 8).
5.59The main advantage of this option is that it has been specifically crafted to deal with the concerns that have arisen in the case law and raised by submitters. The option resolves the practical timing issues outlined above, enabling admissibility issues to be determined pre-trial so that admissible statements may be offered in evidence-in-chief. It clarifies the admissibility of statements forming part of the “res gestae” and “fact of complaint” and provides a framework for trial judges to determine admissibility.
5.60The disadvantages of this option that we have identified are:
5.64This option was put to the Evidence Act advisory group who raised the following additional concerns:
5.65We acknowledge these concerns and the risk that this option may not provide sufficient guidance to trial judges in the most difficult cases. However, we are of the view that, properly applied, this option provides a principled approach to deal with previous consistent statements. It has the key benefit of simplicity. It will focus admissibility decisions on the fundamental tests under the Act so that judges and counsel will be required to determine whether a particular previous statement is relevant, and, if relevant, whether its probative value outweighs its prejudicial effect or will needlessly prolong proceedings.
5.66This approach also has the benefit of conceptual clarity. The concepts of relevance, probity and prejudicial effect and needlessly prolong are generally well understood by the profession and the judiciary. Application of the fundamental tests focuses attention on the critical matters under the Act, rather than an analysis of whether a particular statement falls within a particular category. It avoids engaging in fine distinctions as to whether a statement is “consistent” or “inconsistent” or whether it constitutes a “statement”.
5.67There will undoubtedly be a “settling-in” period as courts tackle this new approach. However, we note that any amendment would have this effect, and we consider that this uncertainty can be mitigated by strong extrinsic material (such as material that accompanies the progress of a bill through the parliamentary process) that sets out the legislative intention behind the repeal of subs (1) and (2). Appellate guidance on the admissibility of previous consistent statements will also occur in the usual way.
5.68Consequential amendments should also be made deleting the “previous consistent statements rule” definition in s 4, and references to the section or rule in s 25(4), s 27(3) and s 34(1).
R9 We recommend repealing s 35(1) and (2) so that the admissibility of previous consistent statements is determined by the fundamental tests contained in ss 7 and 8, and deleting the “previous consistent statements rule” definition in s 4, and deleting references to s 35 and the previous consistent statements rule in s 25(4), s 27(3) and s 34(1).
5.69The above options cover subs (1) and (2). We have received comments from submitters that subs (3) never sat neatly alongside subs (1) and (2). Rather than admitting evidence that is consistent with a witness’s testimony, subs (3) provides for the admission of a previous statement that a witness is unable to recall. The import of this provision fits more appropriately in s 90 which deals with the use of documents in questioning a witness or refreshing memory. Under both options discussed above, we recommend moving subs (3) to s 90.
R10 We recommend moving the substance of s 35(3) to s 90.