Previous consistent statement is:
1) A written or oral statement.
2) Made sometime before the witness giving evidence.
3) Which corresponds with the evidence that a witness gives in court
A previous consistent statement may not be presented as evidence by:
1) The witness personally
2) By a different witness
BASIS FOR EXCLUDING A PREVIOUS CONSISTENT STATEMENT
1) A previous consistent statement has no probative value: A lie can easily
be repeated, and repeating the same statement does not make it true
2)
TO REBUT THE ALLEGATION OF RECENT FABRICATION
1) The court in Menday v Protea Assurance 1976 (1) SA 565 (E) at 566 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
EXCEPTIONS
1) To rebut an allegation of recent fabrication.
2) Sexual offence cases.
3) Identification.
4) Part VI of the Civil Proceedings Evidence Act 25 of 1965.
5) Res gestae.
6) Refreshing of memory.
7) Statements made at arrest or on discovery of incriminating articles.
8) Section 213 of the Criminal Procedure Act 51 of 197
SEXUAL OFFENCE COMPLAINTS
1) The complaint about a sexual offence had to be voluntary.
2) The complainant must testify.
3) The complaint had to be made at the first available opportunity.
4) The nature of the complaint had to be a sexual offence.
5) The previous consistent statement (complaint) proves consistency onl
Section 60
1) Court may not treat evidence of complainant with caution on account of nature of offence
The rule that a previous consistent statement is admissible survived (as an exception to the general rule) should have followed the same fate (should have been abolished) because
1) 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.
2) 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.
3) It opens the door for the defence (accused) to exploit the complainant’s
failure to timeously complaint about the sexual offence, which failure
must be seen as casting aspersions on his/her credibility. The psychology of rape survivors dictates that there are many psychological and social factors which impede an immediate complaint.
4) The timing of the reporting of a sexual offence cannot amount to a cursor or criterion to the credibility of a victim
Section 58 of SORMA
1) A previous consistent statement shall be admissible.
2) In criminal proceedings.
3) Involving the alleged commission of a sexual offence.
4) The court may not draw any inference from the absence of a previous consistent statement
Section 59 of SORMA
1) In criminal proceedings.
2) Involving the allegation of a committed sexual offence.
3) The court may not draw a negative inference EXCLUSIVELY on the
delay between the commission of such an offence and the reporting
thereof
Dock identifications
1) If a witness identifies the accused person (sitting in the accused box), such an identification obviously carries very little probative value
2) Prior identification carries much more probative weight, such as identification at an identification parade
3) Evidence that a previous identification was made, prior to the dock identification
should be admissible because it is relevant to show that from the start the accused was identified by the witness as the accused.
38. This will give real weight to the ‘dock identification’
Identification
1) The evidence of the previous pointing out can be given by the witness herself (who pointed out the accused previously) or anyone else, such as a police officer.
2) Evidence of identification should not go further than mere identification.
The purpose of the evidence is to show consistency. The fact of the previous
identification is admissible, not evidence about the accused’s identifying features.
PART IV: CIVIL PROCEEDINGS EVIDENCE ACT 25 of 1965
1) S34(1) applies to civil proceedings
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
Provided:
1) The person making the statement had personal knowledge of the
matters dealt with in the statement OR;
2) Where the document in question is or forms part of a record purporting
to be a continuous record, made by a person in the execution of an official duty to record such information supplied by a person who do have
personal knowledge of those matters
3) The person who made the statement is called as a witness.
S34(2)1)
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:
Sec35(2):
Is not Corroberations
Res Gestae
1) 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
3) Consistency.
REFRESHING OF THE MEMORY OF A WITNESS
1) Has no probative value, value in viva voce evidence where mind is now refreshed
STATEMENTS MADE ON ARREST OR DISCOVERY OF INCRIMINATING
OBJECTS
1) Statements made when an accused is arrested or after incriminating articles are recovered may be admitted into evidence as a previous consistent
statement.
2) It can hardly follow that such statements carry more probative value than other previous consistent statements.
3) It proves consistency and NOT that the content of the statement is correct
SECTION 213 OF THE CPA
1) Section 213 of the Criminal Procedure Acy apply to witnesses and not to the accused.
2) 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.
3) S213(4) envisages that the said witness may later be called to testify after his/her statement has been proven by consent.
4) The previous statement will not corroborate the evidence, it will simply point to consistency
