Proof or believability

One of the difficult distinctions in the law of evidence concerns the use of statements made by a witness on a previous occasion to contradict what the witness now says in court. On the one hand, such statements impeach credibility: the court may place less reliance on what the witness now says, because the witness has said something different before. In this situation, reducing reliance on what the witness now says does not amount to positive proof to the contrary. On the other hand, such statements could be treated as proof of what they say, and the court might conclude that the facts were as the witness had previously said, not as the witness now says.

The Supreme Court of Canada, in R v Henry [2005] SCC 76 (15 December 2005), has held that an accused’s prior testimony at a miscarried trial may be used, to contradict evidence he gives at a subsequent trial, as proof of the truth of what was previously said. At para 48 it was put this way:

” …If the contradiction reasonably gives rise to an inference of guilt, s. 13 of the Charter [the right not to be compelled to give evidence; comparable to s 25(d) New Zealand Bill of Rights Act 1990] does not preclude the trier of fact from drawing the common sense inference.”

The different approaches were summarised in para 8:

” … both parties view with scepticism the idea that the trier of fact can truly isolate the purpose of impeaching credibility from the purpose of incrimination. They agree on the problem but disagree about the solution. The appellants’ solution … is that unless the statements used to contradict the present testimony were innocuous when made at the first trial, and still innocuous at the second trial, they should be altogether excluded, i.e. even for the limited purpose of challenging credibility. … Otherwise, they fear, the contradictions may well be used by the trier of fact for the forbidden purpose of incrimination. The Crown also recognizes the troublesome nature of the distinction but … says that fair trial considerations absolutely require that the contradictions in the evidence of an accused be exposed. The Crown then goes further … in saying that the trier of fact should be able to make of the contradictions what it wishes, including drawing an inference of guilt, and indeed that a realistic appraisal of the trial process permits no other conclusion, human nature being what it is.”

The resolution of this problem is reasonably easy where, as in Henry, the court is concerned with prior testimony, as opposed to out of court, unsworn, statements. Testimony is advanced for its truth, so if a witness had previously given evidence to one effect, it seems appropriate to use that on a later trial as evidence of its truth where it conflicts with what the witness now testifies.

In Australia, s 60 of the uniform evidence Acts has been interpreted to allow prior testimony to be used as proof of its truth, at least as far as intended, as opposed to unintended, assertions are concerned (Lee v R (1998) 195 CLR 594 (HCA)).

In New Zealand, clause 33 of the Evidence Bill sets out proposed “truthfulness rules”, including a rule that the rules about hearsay evidence “do not apply to exclude evidence about reputation that relates to truthfulness”. This formula, “do not apply to exclude”, appears to mean that such evidence may be admissible for a hearsay purpose, that is, as evidence of its truth. The position here, however, is far from clear. If a court transcriber (judge’s associate) were to be called as a witness to give evidence of what the accused had said at an earlier trial, to rebut what the accused has said at the present trial, that would not be hearsay evidence as defined in the Bill, because it would be evidence about a previous statement by a witness (see cl 4 definition of “hearsay statement”). Again, while this evidence would be admissible on the issue of credibility, it is not clear whether it is also admissible for the truth of what the accused previously said.

Currently, s 10 of the Evidence Act 1908[NZ] covers the position, insofar as it permits witnesses to be cross-examined about their previous inconsistent statements. Judicial opinion on whether the previous inconsistent statements admitted under this provision are evidence of their truth has varied from the mid-nineteenth century. Cross on Evidence, para 9.53, states that the present law is that they are not proof of their truth, citing Tepaki v Police [1967] NZLR 337, and at para 9.54 the learned authors say that the rationale for this is “simply another instance of the pseudo-logic occasionally indulged in by lawyers”, while they acknowledge that previous statements made on oath may raise different issues than those made under differing circumstances.


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