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3 Previously Consistent Statements

The document discusses the rules around previous consistent statements made by witnesses in court. It can be summarized as: 1) Generally, previous consistent statements made by witnesses are inadmissible in court due to reasons such as potential for easy fabrication and insufficient evidential value. 2) There are some exceptions where previous consistent statements may be allowed, such as to rebut an allegation of recent fabrication by a witness or to corroborate a prior identification of a suspect. 3) Statutory additions have also created exceptions for complaints by victims of sexual offenses and for identity descriptions provided to police artists.

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22 views10 pages

3 Previously Consistent Statements

The document discusses the rules around previous consistent statements made by witnesses in court. It can be summarized as: 1) Generally, previous consistent statements made by witnesses are inadmissible in court due to reasons such as potential for easy fabrication and insufficient evidential value. 2) There are some exceptions where previous consistent statements may be allowed, such as to rebut an allegation of recent fabrication by a witness or to corroborate a prior identification of a suspect. 3) Statutory additions have also created exceptions for complaints by victims of sexual offenses and for identity descriptions provided to police artists.

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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Previously consistent

statements
Chapter 9 Principles of evidence.
Introduction and the general rule.
• The rules applicable to previous consistent statements are primarily
common law rules.
• Section 252 of the Criminal Procedure Act has the effect that the rule,
as it was applied on 30 May 1961 in English law, forms part of our law.
• Certain statutory additions and amendments have created exceptions
to the common law rule.
Definition
• A previous consistent statement can best be described as a statement
by a witness which was made (orally or in writing) at a stage prior to
the time when it is repeated in court.
The Rule.
• In common law a previous consistent statement is inadmissible.
• A witness may not, albeit during evidence-in-chief, cross-, or re-
examination, refer to his earlier consistent statement.
• In Scott-Crossley 2008 (1) SACR 223 (SCA) the SCA ruled that the trial
court’s finding that the witness was reliable by reason of fact that his
evidence was consistent with his earlier statement made to the police,
was wrong, since witness’ previous consistent statements have no
probative value.
• The rule also embraces the evidence of other witnesses who may refer
to previous statements by former or future witnesses and even
documents which may be classed as previous consistent statements.
• The document (for instance a witness statement) may conform to the
other rules relating to documentary evidence, such as being the
original and being genuine and authentic.
• It remains irrelevant as it fails the first requirement, to wit, general relevancy.
• In Rose 1937 AD 467 at 473 it was said that a lie is as easily repeated
as an untruth.
• It does not assist the quest for a solution as repetition does not amount to
independent factual confirmation.
Reasons for the Rule.
• Various reasons are given for the rule that previous consistent statements
are inadmissible.
• They include:
• the potential danger of easy fabrication;
• the insufficient evidential value of such evidence;
• its unreliability; and
• The rule against self-corroboration.
• The true reason for its inadmissibility lies in its irrelevance.
• The aforesaid factors, such as unreliability, easy fabrication and
insufficient value, should affect the weight of the evidence and not its
admissibility.
Exceptions.
• A prior consistent statement will be admissible only if it falls within a recognized exception
to the rule.
To rebut an allegation of recent fabrication.
• A favorite ploy by a cross-examiner is to imply (explicitly) that a witness is fabricating
evidence.
• To counter this, a previous consistent statement may be proved.
• It often happens that a witness withholds certain evidence or that it is not elicited during
evidence-in-chief.
• If this evidence is elicited during cross-examination, the cross-examiner usually avers that
the witness fabricated the evidence, as that can be the only reason why it only now comes
to the fore.
• The obvious remedy for the re-examiner would be to refer the witness to his earlier
statement, to identify it and to read the relevant sections into the record.
Previous identification.
• The evidence of the prior identification is of significance as it was
done under different circumstances.
• Only the fact that the same person was identified by the witness is
admissible and not what that person did.
• Whilst it is agreed that the identification cannot be used to prove any
of the alleged acts by the accused, those words which form an
inseparable unit with the identification should be admissible.
Identity kits.
• The description given to a police artist by a victim in order to have an
identikit drawn up, will also amount to a previous consistent
statement if the police artist or the witness repeats that description in
court.
Complainants by victims of sexual offences.
• The common law position is that evidence may be given of a voluntary
complaint made by the victim within a reasonable time after the
commission of the alleged sexual offence.
• Sections 58 and 59 of the Criminal Law (Sexual Offences and Related
Matters) Amendment Act 32 of 2007.
• Section 58 provides as follows:
“Evidence relating to previous consistent statements by a complainant shall be
admissible in criminal proceedings involving the alleged commission of a sexual
offence: Provided that the court may not draw any inference only from the absence of
such previous consistent statements.”
• Section 59 provides as follows:
“In criminal proceedings involving the alleged commission of a sexual offence, the
court may not draw any inference only from the length of any delay between the
alleged commission of such offence and the reporting thereof.”
General remarks on Act 32 of 2007
exceptions.
• In R v C 1955 (4) SA 40 (N) the common law requirement was stated
as follows:
“To qualify for admission, the 'complaint' must have been made voluntarily, not
as a result of leading or suggestive questions, nor of intimidation.”
• It is a condition of admissibility that the victim should testify.
• Consistency cannot be proved without the victim's version.
• Neither the fact that the victim complained nor the contents of the
complaint may be received if the victim fails to or cannot testify.
S v R 1965 (2) SA 463 (W).
• It was alleged that the victim (a chronic alcoholic) was raped in an ambulance whilst
on her way to a nursing home for treatment.
• The accused, who had accompanied her on the journey during which intercourse
took place, alleged that she had consented.
• Upon their arrival at the nursing home the victim repeatedly averred that the
accused had raped her.
• These statements were overheard by a nurse.
• At the trial and as a result of the fact that the victim's acute alcoholic condition had
given rise to amnesia she was unable to recall anything from the time she entered
the ambulance.
• But in her evidence she denied that she could have consented to intercourse.
• The complaint was held admissible despite the fact that the victim was unable to
repeat it in her testimony.

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