Contents

Chapter 5
Previous consistent statements

When is a statement “consistent”?

5.29The word “consistent” is not defined in the Act. As noted above, in Evidence: Code and Commentary the Law Commission stated that “‘[c]onsistent’ does not simply mean the lack of inconsistency: there must be something in the witness’s testimony with which the previous statement is consistent.”332  However, the authors of Cross on Evidence take a different view, stating that “consistent” should be interpreted to mean “not inconsistent”.333
5.30In Hart v R, Elias CJ noted the competing views and, while expressly noting that the matter did not need to be decided, tended to favour the Law Commission’s narrow approach, stating:334

… If the rationale for the rule of exclusion is unnecessary repetition, then the better view may well be that remedying an omission in evidence through admitting a previous statement does not engage the rule of exclusion in s 35(1).

5.31 The Court of Appeal in Hitchinson v R subsequently noted:335

Section 35 was not intended to exclude relevant and probative evidence which is not repetitive, and which can be categorised as a previous consistent statement only in the sense that it is consistent with the general tenor of the witness’s evidence.

5.32As “consistent” has largely been interpreted how the Law Commission intended it should be, and we are not convinced that this position is wrong, our inclination is that this sub-issue in isolation does not require legislative amendment.

332Law Commission Evidence: Volume 2, above n 294, at 99.
333Donald Mathieson (ed) Cross on Evidence (online looseleaf ed, LexisNexis) at [EVA35.4].
334Hart v R, above n 309, at [10].
335Hitchinson v R [2010] NZCA 388 at [26].