Friday, July 23, 2010

Prior consistent statements

Hart v R [2010] NZSC 91 (23 July 2010) addresses the law of the admissibility of prior consistent statements in the context of a claim of recent invention under s 35 Evidence Act 2006.

The Court was unanimous, and the reasoning in the two judgments is consistent. Blanchard, Tipping, McGrath and Wilson JJ jointly held that the essence of an admissible prior consistent statement is its tendency to respond to a challenge to the witness's veracity or accuracy based on a claim of recent invention [50]. An "invention" is a deliberately misleading statement [51]. It is not always possible to identify exactly when a motive to fabricate arose [52, and Elias CJ at 20]. Therefore it is not necessary that the prior consistent statement was made before the occasion or motive for the claimed invention [53, and Elias CJ at 20]. This is a departure from the position that had prevailed at common law.

The prior statement is admissible as proof of the truth of its assertion [54-57]. This too is a departure from the common law rule that prior statements were only admissible as proof of the witness's consistency.

Elias CJ held that prior statements admissible under s 35 can include what the common law called "recent complaint" allegations of sexual offending [14]. It is now not necessary that such complaints be "recent" in relation to the alleged incident, but their admission does need to be "necessary" to rebut the allegation of recent invention [15].

She also held that a recent invention in terms of s 35 is one that occurred after the events described [16].

Elias CJ disagreed with the Court of Appeal's judgment in R v Barlien [2008] NZCA 180 on several points (I have commented on this case on 8 July 2008): recent complaints are within s 35, and speech that is part of the events (formerly called res gestae – a term that is now to be avoided [17]) can also be admissible "in themselves" [17]. She also doubted that Barlien was correct to exclude from s 35 previous statements by identifying witnesses [footnote 29]. Nor did she consider the legislation would disrupt the course of evidence, as defence counsel would usually indicate the basis for a defence in opening remarks, or would agree that the Crown could lead evidence of the prior statement in examination in chief [19].

Barlien was therefore needlessly alarmist.

Of critical importance will be the necessity requirement: when is admission of evidence of the prior consistent statement "necessary" under s 35? [Elias CJ at 11, joint judgment at 51.] The joint judgment says that judicial experience with the common law will assist in judging the tendency of the statement to rebut the allegation of recent invention. Elias CJ refers to the requirements of relevance in s 7.

Much to rejoice about here, if clarity is what you want. I am a little uneasy about the joint judgment's apparent limitation of "recent invention" to statements that are deliberately misleading [51], because s 35 allows them to be admitted to respond to a challenge to the witnesses "accuracy", not just "veracity".