Tuesday, July 08, 2008

Prior consistent statements

In R v Barlien [2008] NZCA 180 (24 June 2008) the Court made some important criticisms of s 35 of the Evidence Act 2006. The Court ordered that these criticisms be brought to the attention of the Minister of Justice and the Law Commission.

The essence of the criticisms is that under s 35 a complainant’s prior consistent statement alleging the accused’s sexual misconduct cannot be admissible unless the defence claim that the complainant’s evidence is a “recent invention”. There are other circumstances where the prior consistent statement may be admissible, spelled out in s 35, but that is the one relevant to this case.

At common law there was no such need for a defence claim that the testimony was recently invented if the statement qualified for admission as a fresh or recent complaint. Perhaps – just speculation here – s 35 made this change intentionally as part of a delicate balancing of competing interests. The section does have the effect of making the prior statements, when admissible, proof of their truth (this was held in Barlien para 20); the common law had only allowed them as evidence of consistency.

In assessing the Court’s criticisms of s 35 one should bear in mind how counsel will usually approach the issue. In some cases, counsel for each side can sort out between them, before the trial, whether it is likely the Court will be asked to rule on the admissibility of a prior consistent statement. Disclosure of the complainant’s statements will have been made to the defence, and defence counsel will, in these rare cases, know whether he will be alleging that the complainant’s evidence – assuming the complainant comes up to brief – is a recent invention. That is, an invention made at some point where a motive for invention operated. It would be unusual for a case to be prepared for trial with a conflict between the complainant’s statements. More usually, a conflict will only emerge when the complainant gives evidence. The difference between what the complainant says in court and what the complainant previously told someone will give the previous statements its status as a prior inconsistent statement. But inconsistent statements are not the concern of s 35.

There is no statutory definition of “recent invention” but it is obvious that it means an allegation that what the complainant is saying in court is an invention that was made after the events with which it purports to be concerned. The “recency” refers to the time since those events. The invention in court could be a result of an intention to lie, or it could be an innocent mistake. Most cases, in which the defence either deny the occurrence of the events or dispute the allegation of absence of consent, will be cases where recent invention is alleged.

The Court's concerns in Barlien are of questionable merit.

Here is the Court’s postscript to its judgment in Barlien, setting out its concerns. I have inserted my comments in italics and square brackets:


[64] This case has highlighted some issues with s 35 of the Evidence Act and the changes to the Law Commission draft code made at Select Committee stage. The changes were made because the Select Committee considered the original Law Commission section “unworkable and too broad”.

[65] Some might even argue that the Law Commission draft code was too restrictive in that it perpetuated what some might see as an illogical distinction between conduct and statements. This is particularly the case where words are inextricably intertwined with conduct …. In addition, it excluded potentially relevant evidence. This was on the basis that parties should not, without good reason, inundate the court with voluminous repetitive material. However, s 8(1)(b) already gives judges control over this. [Yes, but: in the absence of a defence allegation that the complainant made a prior inconsistent statement – told another story out of court – the jury is likely to think that the testimony they have heard is what the complainant said all along, and the evidence of the complainant’s conduct at the relevant time – when the complaint was made – will make this thought inevitable.]

[66] Further, the Law Commission draft code required a challenge to be made to veracity or accuracy before previous consistent statements became admissible. A jury is still, however, able to reject evidence that has not been challenged given that they are the fact finders – see R v Munro [2008] 2 NZLR 87 at [25] (CA) and R v E [2007] NZCA 404 at [134]. Limiting admissibility to evidence that has been challenged could deprive a jury of potentially relevant material upon which to base their decision. Further, limiting admissibility to cases where there has been a challenge to the evidence means that it can usually only be admitted after such a challenge. This might interrupt the orderly conduct of trials and could inconvenience witnesses who might have to remain on standby, uncertain if they would be called (or recalled). It may also mean that, where words were inextricably tied in with conduct, a disconnection between the evidence as to conduct and the words that accompanied them might arise. There is also the difficulty in assessing admissibility if a witness is yet to testify ….

[67] All of these problems remain, however, with s 35 as enacted and further problems have been introduced. We identify a number below but there may be others.

[68] While the Select Committee said that it was restricting admissibility to those situations where previous consistent statements would have been admissible under current law this is not the case – see above at [35]. The disinterested observer might well think it odd when evidence that would have been admissible under the more restrictive common law rules is no longer admissible under the more expansive Evidence Act provisions.

[69] There appears to have been a mistake in not including, in the exceptions to s 35(1), the res gestae exception – see above at [37] - [39]. [Not necessarily: s 12 may govern this situation.] In addition, the rules relating to recent complaints were not retained – see above at [36]. Such evidence has previously been regarded as being of probative value [Yes, only as going to credibility; now it goes to truth on those occasions when it is admissible]. While the omission of provision for recent complaint evidence may well have been deliberate (although unexplained), it does deprive juries of relevant information - see our comments at [47] - [49] above [Yes, but in the absence of a challenge from the defence the jury will assume that the complainant was always consistent. The Court’s point is that the complainant may forget some of the complaint, but why depart from the usual rules as to forgetful witnesses – s 90(5) ?]. It also deprives [again, might deprive, but the assumption of consistency makes it not very likely to do so] them of evidence which they appear to find helpful – see Dr S Blackwell Child Sexual Abuse on Trial (Thesis submitted for Doctor of Philosophy in Psychology, University of Auckland, 2007) at 216. There is also a possible difficulty with the admission of previous descriptions of the accused, in that s 22A of the Evidence Act 1908 was not brought forward into the new Act – see above at [33] [It is likely that an allegation that an eyewitness is mistaken will count as a claim of recent invention, so the prior consistent description will be admissible, and for its truth, not just as supporting present credibility].

[70] In addition, even more than under the Law Commission version, the admissibility or otherwise of relevant evidence in the form of previous consistent statements depends on how the accused decides to run his or her case. [Not much of a choice, in reality.] The Right Honourable Ted Thomas has recently commented that in his view this is unfair to victims of sexual offending – see “The Evidence Act 2006 and women” [2008] NZLJ 169 at 170. We note that, even if defence counsel does not raise the issue of recent invention, this does not prevent the jury from surmising as to why the complaint is delayed and perhaps considering the prospect of recent invention [Defence counsel cannot suggest that the complaint is a recent invention if it is known not to be; the usual defence position will be that all the complainant’s statements on the material point are inventions.]. Dr Blackwell’s thesis suggests that juries’ decision-making usually involves the “story construction” model whereby personal knowledge or experience about similar events is used, along with evidence at trial, to create a complete story of events – see Dr Blackwell’s thesis at 56 – 57. [See also: Bennett and Feldman, “Reconstructing Reality in the Courtroom” (1981) for the same point.]

[71] Section 35(2) also creates a dilemma for defence counsel. The Law Society seminar on the Evidence Act, pointed out that s 35 makes cross-examination based on previous inconsistent statement or recent invention a difficult and delicate exercise – see Hon Justice William Young and Hon Justice Chambers (Chairs) Evidence Act 2006 (NZLS Intensive June 2007) at 117. Inroads made on certain aspects of the evidence may be countered and indeed marginalised by re-examination on this and on the production of a prior consistent statement. Moreover, evidence given after a challenge may assume more importance than if elicited in the normal course of the evidence. Failure to cross-examine on those aspects could, however, be equally fatal to the defence. [I agree with the authors of the paper referred to where they say, at the same page, “Potentially s 35(2) could greatly widen the opportunity to produce prior written statements of a witness once the witness has been challenged in cross examination.”]

[72] Finally, there are issues with the interface of ss 35 and 45 in relation to identification evidence generally. In [one commentary], it is noted that the better view is that s 35 will apply even where the requirements of s 45 are met. The authors state that a witness will only be able to support the identification of the defendant by way of a previous consistent assertion identifying the defendant where there is a challenge to the witness’ accuracy or veracity (for example on the basis of poor eyesight). However, this comment must have been based on the old version of s 35 because the prior consistent identification would only be admissible under s 35(2) if the challenge was on the basis of a prior inconsistent statement or recent fabrication [No, the word is not “fabrication” – which suggests deliberate falsehood – but “invention” – which could occur by innocent reconstruction of events] (and poor eyesight would not come within those exceptions) [but it would be invention].

[73] The Registry should refer this judgment to the Ministry of Justice and the Law Commission, drawing their attention in particular to this postscript.

If "recent invention" has the wide meaning of an invention made after the alleged events, or really just an invention, then the focus will be on whether the prior consistent statement is necessary to rebut the defence suggestion of invention. It seems that such necessity will be easy to establish, and that s 35 will have a wide operation.

Update: For the Supreme Court's disapproval of much of Barlien, see Hart v R and Rongonui v R, both delivered on 23 July 2010 and discussed here and here.

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