"As I said before ..."

The most subtle and troublesome rules of the common law concern the use that may be made at trial of a witness’s own out of court statements. These may be consistent with the witness’s trial testimony, or inconsistent with it. In R v Dinardo [2008] SCC 24 (9 May 2008), an appeal which was allowed on other grounds, the trial had been by judge alone and the judge had misstated the law concerning the use that may be made of a complainant’s prior consistent statements.

The appeal was allowed on the grounds that insufficient reasons for his verdict were given by the judge, causing the accused to be deprived of his right to be told the reasons he was convicted (R v Gagnon, [2006] SCC 17), and of his right to meaningful appellate review (R v Sheppard, [2002] SCC 26).

However, it is the use of prior inconsistent statements that is of interest here. Such statements may be called “narrative evidence”. In a refreshingly unanimous decision, delivered by Charron J, the Court quoted, at para 37, McWilliams’ Canadian Criminal Evidence (4th ed. (loose-leaf)), at pp. 11-44 and 11-45:

“The challenge is to distinguish between “using narrative evidence for the impermissible purpose of ‘confirm[ing] the truthfulness of the sworn allegation’” and “using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility”.

It is quite possible that there may be someone who is able to understand that distinction, but many more people will claim, falsely, to understand it. It is a distinction that has been dropped in New Zealand, where the law of evidence was recently reformed: Evidence Act 2006.

Under this reformed law, a witness’s out of court statements are not hearsay, and prior consistent statements are, in the limited circumstances in which they are admissible, evidence for the truth of their contents: s 35

In the USA (my thanks to Peter Tillers for this:) "Under the (US) Federal Rules of Evidence the default rule remains that out of court statements of testifying witnesses are hearsay. Under R 801(d)(1)(A) statements of testifying witness are "exempt" from the hearsay rule only if the statements were made under oath in certain proceedings. The other exemptions in subdivision (d) cover limited situations as well. This may not make sense but, for the moment, that's the law in the federal courts of the United States and in the courts of the most States of the United States. The Advisory Committee that drafted the Federal Rules of Evidence (in the late 1960s and early 1970s) proposed that all prior inconsistent statements of testifying witnesses be made exempt from the hearsay rule but Congress rejected this proposal by adding the words "and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition" to Rule 801(d)(1)(A). Even some prior consistent statements remain hearsay: some years back the US Supreme Court held that only those prior inconsistent statements that are offered to "rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive" are exempt from the hearsay rule and that prior consistent statements made after a motive for recent fabrication etc arose remain hearsay. See FRE 801(d)(1)(B). Moreover, even the Evidence Advisory Committee did not propose a blanket exemption for pretrial statements of testifying witness; as in current Rule 801, the remaining exemptions in Rule 801 pertain to (i) certain pretrial identifications and (ii) admissions (including vicarious admissions of various kinds) and statements of coconspirators. If these exemptions do not apply, the hearsay rule kicks in."

In Australia, where the uniform evidence provisions apply (Commonwealth, NSW, ACT, Tas, NI and soon, Vic), hearsay includes a witness’s out of court statements (eg, Evidence Act 1995 (C’th) s 59). However, as Jeremy Gans has reminded me, s 60 should render prior statements admissible as proof of their assertions; the High Court has complicated this a bit in Lee v R [1998] HCA 60, but broadly that’s it. In Queensland they are admissible for their truth too.

In the UK, pursuant to the Criminal Justice Act 2003, s 120(2), such prior statements are evidence of the truth of what they assert.


In 1991 the New Zealand Law Commission in Preliminary Paper No 15 Evidence Law: Hearsay, p 3 para 4 said of the distinction between using a prior statement as supporting credibility, and using it to determine what actually happened, “Explaining this to juries – and expecting them to follow the instruction – is one of the more difficult aspects of the hearsay rule.”

R v Dinardo illustrates that explaining the rule to judges – and expecting them to follow it - is difficult too.