#7975 - Previous Inconsistent Statements - Evidence Law

Evidence: 24th August: OUTLINE 9: PREVIOUS CONSISTENT STATEMENTS We've already studied previous inconsistent statements. They are always about attacking veracity of the witness. Previous consistent statements are used when you want to bolster your witnesses' credibility. S35(1) has been one of the most troublesome sections in the Act. Rule of admissability - generally, a witnesses' previous consistent statements are inadmissable. They don't want to clog up the courts with what you've been saying for the last two months or however long, just want the testimony now. Only applies to the previous statement of a witness - need to determine who a witness is (a person who gives evidence and is able to be cross examined) (What about the past testifier? Are they still witnesses? If Bill is a witness, 35(1) will click in.. if he is no longer a witness because he has finished testifying, 35(1) will not apply - but you can stop it getting in with the hearsay provisions.) (Mahoney thinks to make things smooth, the past testifier is still going to be thought of as a witness) (Future testifier - are they a witness. Mahoney thinks they aren't. Previous consistent statements - how does this work, don't know what she is going to say, maybe she will say consistent things, maybe inconsistent. Hearsay provisions would probably keep it out.) s35(1) is not aimed at all previous statements of a witness - just previous consistent statements. Has nothing to do with previous inconsistent statements - no general bar on previous inconsistent statements of a witness. What about a statement that's neither consistent nor inconsistent - no particular bar on this. R v Barlien: - Said we don't like the previous consistent statement rule - should be part of the 5yearly review. Set out reasons why they didn't like s35. It got rid of some exceptions to the general rule that they had grown up with. Alludes to the problem of who is a witness, but doesn't solve it. In the definition of visual identification evidence, it includes an account of somebody identifying the bad guy. S45 big admissability section, says the visual identification evidence is admissable, unless defence can prove it's unreliable. This means that an account is also admissable. What if the witness gets up and says "yup, I identified the guy running down the street, and I told the cop that", and then the cop gets up and says "yup, she told me that" previous consistent statement, s35(1) would exclude this. S35(2) How do we now get previous consistent statements in? Exception in s35(2). Previous statement of a witness that is consistent is admissable to the extent that the statement is necessary to respond to a challenge R v Stewart: - Numerous charges, attacked the witnesses' testimony in one of the open the door kind of ways (s35(2)), with respect to some of the counts. - They knew that on those counts, there was no previous consistent statements. CA agreed that once the witnesses' credibility has been attacked on those counts, can put in previous consistent statements for all counts to bolster their veracity.