EVI3701___EXAM_NOTES_CHAPS_7___16

STUDY UNIT 7 - PREVIOUS CONSISTENT STATEMENTS DEFINITION OF A PREVIOUS CONSISTENT STATEMENT A previous consistent statement is  a statement made by a person  which is consistent with (i.e. more or less the same as)  a statement made by the same person during testimony in court (or sometimes by another witness)  offered in an attempt to corroborate this person's testimony. The rule of the law of evidence is that it is inadmissible for a witness to testify that she made a statement consistent with her evidence in court. Does this rule also apply to complaints in sexual cases? Fully discuss with reference to cases and applicable examples. (10) THE RULE IN RESPECT OF ADMISSIBILITY  The rule of the law of evidence is that it is inadmissible for a witness to testify that he made a statement consistent with his evidence in court (or to be questioned to this effect).  This is because evidence about a previous consistent statement is irrelevant. Reasons why this evidence is irrelevant: (1) It has no probative force or value: a lie may be repeated as easily as the truth. (2) It is easy to fabricate the evidence. (3) It is superfluous. (4) It is time-consuming, involves numerous collateral enquiries and duplicates evidence without any advantage. (5) The rule against self-corroboration limits its probative value. THE EXCEPTIONS TO THE RULE COMPLAINTS IN SEXUAL CASES S v Cornick Two pieces of evidence about a complaint made soon after an alleged offence of a sexual nature are admissible even if this evidence is about a previous consistent statement. These are (1) evidence that such a complaint was made (2) evidence about the contents of the complaint Why are these two pieces of evidence of any importance in cases dealing with a sexual offence? (1) Evidence that the complaint was made is important as it serves to support the credibility of the complainant. (2) Evidence on the content of the complaint will also indicate that the evidence tendered in court has not been recently fabricated and will support the consistency, and therefore credibility of the complainant. In S v Hammond  the Supreme Court of Appeal stressed that evidence of a complaint in a sexual case is admitted only in exceptional cases  it acts as evidence of consistency in the account given by the complainant.  It is therefore admitted as a matter going to the complainant's credibility. It is not corroborative evidence, rather it supports the credibility of the complainant so testifying.  Section 58 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 makes it clear that the court may not draw any inference only from the absence of a previous consistent statement in a case of a sexual nature. The following requirements have to be satisfied for this exception to apply: (1) The exception applies to cases of a sexual nature if there has been some degree of assault involved, or if the complainant was the victim of a sexual offence which involved physical contact. In the case of young children, however, no such physical contact is required. Examples of offences where this exception is clearly applicable are rape, indecent assault and incest. It does not matter whether the complainant is male or female. (2) The complaint must have been made at the first reasonable opportunity. What this reasonable opportunity would be depends on the circumstances of each individual case, and factors such as the age and understanding of the complainant and whether contact was made with a person in whom the complainant could confide. The trial court has to exercise a discretion in this regard. (3) Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 - 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. (4) The complaint need not have been made totally spontaneously, but may not have been made after questioning which can be considered intimidating or leading. The court has to decide how much intimidation it will allow before the evidence will become inadmissible. (5) The complainant has to give evidence. In the absence of any evidence by the complainant, the evidence will be inadmissible because it then stands to be admitted as hearsay, unless it is found to be relevant for some purpose example - S v R. There, the complainant, whilst distressed and crying and under the influence of alcohol, complained about having been raped almost immediately after the incident. At the time of the trial, however, she could not remember anything about the incident. The court allowed evidence (by another witness) of her complaint and the contents thereof, since it found such evidence relevant to indicate the complainant's state of mind at the time of the incident, and to counter the defence of consent (to sexual intercourse). TO REBUT AN ALLEGATION OF FABRICATION  If it is suggested or alleged (mostly during cross-examination) that the witness has recently fabricated a part of his evidence, evidence may be led to show that the same thing was said at an earlier opportunity.  This evidence is only tendered to show that the witness did not recently fabricate the evidence, in order to support the credibility of the witness.  The evidence is therefore relevant for this purpose (to support the witness's credibility), but not to corroborate the witness's evidence. the legal position regarding the admissibility of previous consistent statements in order to rebut a charge of recent fabrication:  A charge of recent fabrication is rebutted when it is shown that, long before the alleged fabrication in court, the witness had made a written or oral statement out of court which is consistent with her evidence in court.  The party calling the witness may prove that the witness had no motive or opportunity to fabricate a false version.  The previous consistent statement will be admitted if it is relevant in supporting the credibility of the witness on this point, and thus rebutting the attack on the credibility of the witness.  However, it will not be admitted to corroborate the witness’ evidence