Thursday, October 23, 2008

Fantasy and invention

In discussing recent invention (see blog for 8 July 2008 concerning R v Barlien, and the further comment on 19 July 2008), I suggested that an "invention" could be an innocent invention and not just a dishonest one. The point has been addressed briefly in R v Stewart [2008] NZCA 429 (22 October 2008).

Here there were several themes discernable in the cross-examination of the complainant. One, that in the Court's view did not necessarily amount to an allegation that she had recently invented her evidence, was the suggestion that she had been infatuated with the accused and had fantasised about these purely imaginary events. The Court did not refer to another possible difficulty with using an allegation of fantasising as the basis for admitting a prior consistent statement, namely the likelihood that such a prior statement would also be the product of inflamed imagination.

The Court's indication that, on its own, an allegation that a complaint was the result of fantasising need not be an allegation of recent invention, seems to suggest that any innocent misstatement of the facts would not count as an "invention" for the purposes of s 35(2) of the Evidence Act 2008. Personally, I don't see why not, as that provision refers both to use of prior consistent statements to respond to challenges to the witness's veracity and to the witness's accuracy. Inaccuracy can occur without untruthfulness.

The infatuation suggestion in Stewart had, however, to be seen in the context of the other themes to the cross-examination in this case. These were allegations of deliberate falsehood and motivation to obtain financial advantage. In the particular context the Court held that it was not possible to separate the allegations into those which were said by the defence to be motivated only by fantasy from those that were said to be motivated by dishonesty. Accordingly, the defence position was that the complaints were recent inventions, with the consequence that, subject to s 8 of the Evidence Act 2006 (the general discretion to exclude unfairly prejudicial evidence), evidence of the complainant's prior consistent statements was admissible.

The Court referred at 85 to R v Barlien and followed it on the point that the prior consistent statements were evidence of their truth.

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