Chapter 5
Previous consistent statements

Use of a previous consistent statement once admitted

5.26Section 35 is silent as to whether, if admissible, a previous consistent statement can be used for all purposes, or only to bolster the witness’s credibility.

5.27At the first opportunity, the Court of Appeal concluded that “if [previous consistent] statements are admissible under s 35, they are admissible to prove the truth of their contents.”326  Such an approach was subsequently criticised.327
5.28However, the Supreme Court in Hart v R has concluded that the “admissible for all purposes” interpretation is correct.328  This position is consistent with what the Law Commission said in Evidence: Reform of the Law,329  and in the subsequent advice to the Minister of Justice,330  and we remain of the view that it is right. As such, while the provision could be amended to expressly provide this, as we earlier suggested,331  it is not strictly necessary.
326R v Barlien, above n 300, at [20].
327Bernard Robertson “Prior consistent statements” [2009] NZLJ 347.
328Hart v R, above n 309, at [54]–[57] per Tipping J.
329Law Commission Evidence: Volume 1, above n 291.
330Letter from Warren Young and Val Sim to Simon Power, above n 302.
331At [21].