Contents

Chapter 5
Previous consistent statements

Options

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.

5.54 In addition to these options, we considered the option of not amending s 35 on the basis that, while the present situation is not perfect, it is at least now settled and understood.368  However, given our view that the section is not operating as intended and the problems it is currently causing in practice, we do not see this as a viable option. We also reconsidered the recommendation that the Law Commission provided to the Minister of Justice in 2009 (discussed above at paragraph 5.14), but subsequent jurisprudence on s 35 has superseded this advice.

Option One: Substantially redraft s 35

5.55This option involves a redraft of s 35 so that previous consistent statements would generally be inadmissible, except in the following circumstances:

(a) the statement forms an integral part of the event or events in issue;
(b) the statement constitutes the fact of a complaint made by a complainant against a defendant in a sexual case;
(c) 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 invention on the part of the witness; or
(d) in exceptional circumstances, the judge considers it necessary in the interests of justice.
5.56Paragraph (c) omits the term “recent” from “recent invention” consistent with case law that this term is redundant.369

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:

  • It involves a pre-trial notification process that may require a party to “show their hand” pre-trial. However, we note that similar concerns were raised in relation to the hearsay notification process, and we have received no indication that these are not currently working well.
  • The exception in paragraph (d) is broad. While the “interests of justice” is a broad term, it is readily understood and is used in many other provisions of the Act. Further, we think that the exception can be drafted in a manner that makes it clear that it only covers exceptional circumstances. Finally, we think that it is desirable to have a general provision to cover any unforeseen situations.
  • As the option involves a substantive amendment to the Act, there is likely to be a “settling-in” period.

Option Two: Repeal s 35(1) and (2)

5.61 The second option we have considered is to repeal s 35(1) and (2) so that admissibility of previous consistent statements falls to be determined by ss 7 and 8. This is our preferred approach. This would mean that previous consistent statements and previous inconsistent statements are treated the same.370  The test would be whether the statement is relevant and, if so, it would be admissible unless its probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect or needlessly prolong the proceeding. This solution has been suggested by some of the academics who we have approached for comment.371
5.62This option has similar benefits to option one. Where admissible, the statement will be able to be given by the witness in his or her evidence-in-chief. The “fact of complaint” could also be led from the recipient of it (the friend in the above example) so long as, again, it met ss 7 and 8.372  For example, the recipient could say that “the complainant told me that the defendant did X to her”. Whether or not the “complaint witness” will be required to give this evidence can be argued (or agreed) in advance of the trial, which will mean that the occasions on which such witnesses will have to simply be on standby should be reduced.
5.63We note that concern has previously been expressed that the absence of an exclusionary rule for previous consistent statements could lead to witnesses fabricating statements and lengthening the trial process.373  However, we consider such issues are able to be adequately dealt with by ss 7 and 8. An invented statement is clearly not relevant, and the judge will have the power to exclude (true) statements where their probative value is outweighed by the risk that the evidence will needlessly prolong the proceedings.

5.64This option was put to the Evidence Act advisory group who raised the following additional concerns:

  • Repeal would cause considerable uncertainty in this area. Without more, it could leave a gap in this area of evidence law, with courts uncertain as to how they should determine admissibility (eg by reference to the pre-Act common law).
  • The threshold tests in ss 7 and 8 are relatively low, which may result in the courts being inundated with voluminous material. In particular, the test for excluding evidence on the basis it will “needlessly prolong the proceeding” in s 8(1)(b) may be a difficult one to meet.

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).

Subsection (3)

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.

368By the time this review is published, it will be over two and a half years since the Supreme Court delivered the decisions of Hart v R, above n 309, and Rongonui v R, above n 313.
369Hart v R, above n 309; letter from Mathew Downs (Crown Counsel, Crown Law Office) to Grant Hammond (President of the Law Commission) regarding Review of the Evidence Act 2006: s 35: previous consistent statements (11 December 2012).
370As to previous inconsistent statements, see Morgan v R [2010] NZSC 23, [2010] 2 NZLR 508.
371It has also been specifically discussed as an option in Elisabeth McDonald Principles of Evidence in Criminal Cases (Brookers, Wellington, 2012) at 104-105.
372It will not be a “hearsay statement”, as the complainant is still a “witness” for the purposes of s 4 of the Act: R v M (CA663/08) [2010] NZCA 302 at [26].
373Law Commission Evidence: Volume 1, above n 291, at 40.