Previous Consistent Statements

Question 1

What is a PCS

Answer 1

*> A written or oral statement.
* > Made sometime before by the witness giving evidence.
* > Which corresponds with the evidence that a witness gives in court.

Question 2

Exclusionary
rule of PCS

Answer 2

o A witness (generally) may NOT testify to a previous consistent statement.
▪ This exclusionary rule applies in both criminal and civil matters.

Question 2

General rule on PCS

Answer 2

pcs =inadmissible

Question 3

The reason for the general rule of excluding similar fact evidence?

Answer 3

it is irrelevant.
→ Previous consistent statements have no probative value.
→ There is thus a rule against ‘self-serving statements’ or ‘self-corroboration’.

Question 4

Previous
INCONSISTENT
statement?

Answer 4

o A previous inconsistent statement (as opposed to a consistent statement) is indeed relevant to the credibility of the witness.
▪ There may be a contradiction between a written SAPS statement (in the docket) made by an eyewitness, and
▪ The viva voce(oral) evidence of the witness, whilst testifying at trial
This will therefore show that she is not a credible witness

Question 5

What’s the Rational justifications for PSC not
being sufficiently relevant to be admitted?

Answer 5

PCS has NO PROBATIVE VALUE: A lie can easily be repeated, and repeating the same statement does not make it true.

There is an inherent risk that evidence can be FABRICATED OR MANUFACTURED

Question 6

Case demonstrating insufficiency of PCS as admissible.

Answer 6

▪In R v Roberts Accused may learn that hawks are investigating her for a commercial crime, defrauding people by moving them to make unjust payments to her.

Knowing that a criminal prosecution may follow,
the accused tells numerous friends and family members that the money she received was from lawful business encounters, in an endeavour to introduce such evidence at the ultimate hearing.

MAY BE SUPERFLOUS: Advancing the same evidence twice (once by previous consistent statement and another time in witness box) does not enhance its strength or probative value of the evidence.

UNWANTED WASTE: It may lead to an unwarranted waste of court time and open the door to collateral inquiries.

Question 7

EXCEPTIONS: A
NUMEROUS
CLAUSUS

Answer 7

▪ To rebut an allegation of recent fabrication.
▪ Sexual offence cases.
▪ Identification.
▪ Part VI of the Civil Proceedings Evidence Act 25 of 1965.
▪ Res gestae.
▪ Refreshing of memory.
▪ Statements made at arrest or on discovery of incriminating articles.
▪ S 213 of Criminal Procedure Act 51 of 1977.

Question 8

What is fabrication?

Answer 8

o If witness is accused of fabricating viva voce evidence presented on witness stand in court → evidence of PCS made in recent times becomes relevant.
o The witness may be accused of fabricating a false version between the occurring event (impugned event) and the trial (day of giving evidence).

Question 9

MENDAY V PROTEA ASSURANCE on fabrication of evidence

Answer 9

o HELD: held that the word ‘recent’ in the phrase ‘recent fabrication’ is not really the correct word to use.
▪ The witness can be accused of fabricating a false version ANYTIME between the impugned event and the day of giving verbal evidence. It may not be recent at all.

Question 10

How fabrication may be rebutted

Answer 10

o Allegation of fabrication by witness may then be rebutted by showing that existing statement was made by said witness previously before time of alleged fabrication.
▪ May even be before commencement of litigation.

Question 11

How the allegation of fabrication can be made

Answer 11

o The allegation of fabrication may be made directly or indirectly (tacitly or by implication).

o General cross-examination that points to unreliability or untruthfulness is not enough - the line of cross-examination must point directly to the fabrication of a false version.

o PCS will even be admissible where witness is accused of fabricating a version, despite having no intention to fabricate it (no dishonesty), like when witness ‘imagined’ given version.
▪ In these circumstances, the PCS is relevant, going to the credibility of the witness.

o The contents of the PCS cannot be accepted as the truth simply because the PCS is admissible.

o The previous consistent statement is also not corroboration.
» The consistency of the previous statement and the evidence in court point to the fact that there was no recent fabrication

Question 12

Admissibility of sexual complaint evidence

Answer 12

o At common law (the law as of 30 May 1961, per S 190(1) of CPA), evidence of a sexual complaint (a PCS) was admissible into evidence oncondition that:

a) The complaint about a sexual offence had to be voluntary.

b) The complainant must testify.

c) The complaint had to be made at the first available opportunity

d) The nature of the complaint had to be a sexual offence.
e) The previous consistent statement (complaint) proves consistency only.

Question 13

Evidentiary
practice (complaint had to be made at first available oppotunity)

Answer 13

founded on judicial experience that sexual-offence-complaints had to be treated with suspicion and caution.
» To get past this suspicion, courts could rely on previous consistent statements.

Question 14

Abolishment of caution rule pertaining to PCS of sexual offence complaints

Answer 14

o S 60 of Criminal Law (Sexual Offences and Related Matters) Act 32 of 2007 (SORMA):
Abolished rule that sexual offenses must be treated with ‘caution’, and reads as follows:

Court may not treat evidence of complainant with caution on account of nature of offence: Notwithstanding any other law, court may not treat evidence of complainant in criminal proceedings involving alleged commission of sexual offence pending before that court, with caution, on account of nature of offence

Question 15

PCS
admissibility
exception to
general rule:
give reasons why this should have been abolished

Answer 15

a) There is no rational basis for the exception to the rule (allowing the admission of the previous consistent statement), on the same basis that there was no rational basis for the cautionary rule.

b) It leads to unfairness: The accused in the criminal trial (person accused of a sexual offence) is barred from presenting similar fact evidence but the prosecution (state) is permitted to do so.

c) It opens the door for the defence (accused) to exploit complainant’s failure to timeously complaint about sexual offence, which failure must be seen as casting aspersions on their credibility.
▪ The psychology of rape survivors dictates that there are many psychological and social factors which impede an immediate complaint.

d) The timing of the reporting of a sexual offence cannot amount to a cursor or criterion to the credibility of a victim

Question 16

SALRC Action

Answer 16

o SALRC intended to get rid of myth that real sexual offence victim reports the sexual offence as soon as possible.
▪ They did so by recommending that a negative inference cannot be drawn simply owing exclusively to a delay in reporting of the sexual offence.
▪ They also suggested that, with other circumstances, court could still draw a negative inference based on the timing of the reporting of sexual offence.

Question 17

S 58 SORMA on
PCS

Answer 17

a) A previous consistent statement shall be admissible.

b) In criminal proceedings.

c) Involving the alleged commission of a sexual offence.

d) The court may not draw any inference from the absence of a previous consistent statement

Question 18

S 1 SORMA –
Sexual Offense

Answer 18

o Any offence I.t.o. Chapters 2, 3 & 4 & S 55 of Act and any offence referred to in Chapter 2 of Prevention and Combating of Trafficking in Persons Act, 2013, which was committed for sexual purposes.

Question 19

How does S 59 further
SALRC stance?

Answer 19

> In criminal proceedings.
Involving the allegation of a committed sexual offence.
» The court may not draw a negative inference EXCLUSIVELY on the delay between the commission of such an offence and the reporting thereof

Question 20

Diff between common law position and SORMA on fact that STATEMENTS MUST BE MADE VOLUNTARILY

Answer 20

COMMON LAW

o For PCS to be admitted, the complaint had to be made voluntarily.

o Excludes:
▪ Complaint being made owing to INTIMIDATION or a THREAT OF HARM.
▪ if STATEMENT was made due to LEADING QUESTIONS by someone such as
the SAPS investigator
→ If the question by the person in charge brings about the voluntary complaint,
→ would be deemed voluntary but emanating from a leading question

SORMA
o S 58 words ‘shall be admissible’ similarly also does not oust requirement that PCS be made voluntarily.
o If complainant is moved to make complaint owing to threat of violence, consistency of statement would lack probative value.
o It the evidence of the PCS lack probative value: It is irrelevant and thus inadmissible.

o Coerced statement also offends Const and can be excluded under S 35(5) of Const.
▪ Because the trial would be unfair, or evidence would be detrimental to administration of justice.
▪ Even applies if unusual circumstances at play is that the complainant constitutional rights are offended and not the accused’s.
o The common law position is retained

Question 21

Common law v SORMA on fact that complainant must testify

Answer 21

COMMON LAW
o Consistency requires 2 encounters:
1. Making of previous statement, and 2. Evidence advanced at trial.
o Thus, if witness doesn’t testify, there can be no evidence of consistency

SORMA
o The common law position is retained.

Question 22

Common law v SORMA on testifying at first reasonable opportunity

Answer 22

COMMON LAW
o Complaint must be made at the first reasonable opportunity.
o What would reasonably be the first opportunity depends on factors such
as:
▪ The age of the complainant.
▪ The presence of a person to whom the complainant can be expected
to complain to.

o The court should consider if a false complaint is made, owing to a lapse
in time between the alleged offence and the making of the statement.
o The delay of the report must be assessed in context and is not fatal to
the case.

SORMA
▪ Court rejected common law requirement that a rape be reported at the first available opportunity.
(LOOK AT TABLE)

Question 23

CL v SORMA on nature of offence

Answer 23

CL
o The offence for which the accused is charged is not the decisive factor.
o The offence must be of a sexual nature.
o There must be a victim and violence (physical element).
▪ Victim includes person who consented but who cannot in law give
consent (child/mentally disabled)

SORMA
o See the definition of a sexual assault supra.
o This definition is wider than the common law application of the rule

Question 24

CL v SORMA on limited evidential value

Answer 24

o PCS only proves consistency of complaint by complainant.

o It rebuts the allegation of fabrication.

o It does not make the state’s case more probable.

o It is not a corroboration.

o Corroboration must come from an independent source.

SORMA
common law remains unchanged

Question 25

Value of identification

Answer 25

o Dock Identifications: If a witness identifies the accused person (sitting in the accused box), such an identification obviously carries very little probative value.

o Prior identification carries much more probative weight, such as identification at an identification parade.

o Evidence that previous identification was made, prior to dock identification should be admissible because it is relevant to show that witness identifies accused from the start.
» This will give real weight to the ‘dock identification’

Question 26

who can make identification?

Answer 26

witness herself (who pointed out the accused previously) or anyone else, such as a police officer

Question 27

Extent of identification on status

Answer 27

o Evidence of identification should not go further than mere identification
→ Purpose of evidence is to show consistency.

o Fact of previous identification is admissible, not evidence about accused’s identifying features.

Question 28

as exception to general rule that PCE=inadmissble

Answer 28

s34(1)

Question 29

s34(1) PART IV: CIVIL PROCEEDINGS EVIDENCE ACT 25 of 1965

Answer 29

o Where direct oral (viva voce) evidence of a fact would be admissible in the normal course, any statement made by a person tending to establish such admissible evidence shall be admitted as
evidence on the mere production of the original document, if:

a) The person making the statement had personal knowledge of the matters dealt with in the statement OR;

b) Where document in question is or forms part of record purporting to be continuous record, made by person in execution of official duty to record such information supplied by person who do have personal knowledge of those matters, AND

c) The person who made the statement is called as a witness

Question 30

S 34 (2) PART IV: CIVIL PROCEEDINGS EVIDENCE ACT 25 of 1965

Answer 30

o Allows the court, having regard to all the circumstances, to admit the statement, if the court is satisfied that an undue delay or expenses would otherwise be the result, despite:

a) The person who made the statement is available but is not called as a witness.

b) Despite the original document not being handed in and only a copy of the original

Question 31

S 35 (2) PART IV: CIVIL PROCEEDINGS EVIDENCE ACT 25 of 1965

Answer 31

o The previous statement does not amount to corroboration of the evidence.

o S 222 of Criminal Procedure Act 51 of 1977 = Equivalent to S 35 (2).

Question 32

Res Gestae

Answer 32

A declaration that is made at some event, that is tendered into evidence to prove that the event occurred.

Res Gestae (things done) in the context of the law of evidence is:
‘Evidence of facts may be admissible as part of res gestae if these facts are so closely connected in time, place and circumstances with some transaction which is at issue, that they can be said to form
part of that transaction’

Question 33

Corroboration +
spontaneous
statement:

Answer 33

o This cannot serve as corroboration of the viva voce evidence of a witness - It can only serve as showing consistency.
o One example is a spontaneous statement: Deemed to be made instinctive and thus less likely to be false

Question 34

REFRESHING OF THE MEMORY OF A WITNESS

Answer 34

o In certain circumstances, the previous statement of a witness may be used to refresh their memory.
▪ Previous statement has no independent probative value.
▪ Witness will have regard to previous statement and their memory will be refreshed.

o Evidential value will come from viva voce evidence (now boosted from refreshed memory) but statement itself has no probative value.
» The witness simply uses the previous statement, which will refresh the witness’s memory

Question 35

STATEMENTS MADE ON ARREST OR DISCOVERY OF INCRIMINATING OBJECTS

Answer 35

o Statements made when an accused is arrested or after incriminating articles are recovered may be admitted into evidence as a previous consistent statement.

o It can hardly follow that such statements carry more probative value than other previous consistent statements.
▪ It proves consistency and NOT that the content of the statement is correct.

o Accused may have been in possession of stolen goods upon their arrest and made an exculpatory (pointing to innocence) statement to SAPS.
▪ Accused will be allowed to testify to previous exculpatory statement.

Question 36

S 213 OF CPA

Answer 36

o Applies to witnesses and not to the accused.
▪ A content of the statement by a witness may be proved by consent. This will imply that the witness need not be called to give viva voce (oral) evidence

Question 37

s213 (4) of CPA

Answer 37

o Envisages that said witness may later be called to testify after his/her statement has been proven by consent.
▪ The previous statement will not corroborate the evidence, it will simply point to consistency.