13 March 2022

PREVIOUS CONSISTENT
STATEMENTS

LEARNING OBJECTIVES

After completing this study unit, you should be able to:

(a) Explain that previous consistent statements are, as a general rule, inadmissible
because they are irrelevant;
(b) Define previous consistent statement;
(c) Evaluate the rationale for the general rule against the admissibility of previous
consistent statements;
(d) Discuss and apply the facts and ratio of R v Roberts 1943 28 Cr App R 102 as an
example of a previous consistent statement from case law;
(e) Name and identify the numerus clausus of exceptions to the general rule against the
admissibility of previous consistent statements;
(f) Discuss and apply each of the following exceptions to the general rule in detail:
1. To rebut an allegation of recent fabrication
2. Prior identification in the form of the so-called “dock identification";
3. Prior identification in the form of the identification parade;
4. Complaint by the victim of a sexual offence, particularly:
i. each of the common law requirements for applicability of this
exception and the criticism thereof;
ii. the provisions of sections 58 and 59 of the Criminal Law (Sexual
Offences and Related Matters) Amendment Act 32 of 2007;
iii. the extent to which each of the common law requirements has been
amended by sections 58 and 59;
 iv. the application of the “first reasonable opportunity” requirement in
S v S 1995 (1) SACR 50 (ZS); and S v Cornick 2007 (2) SACR 115
(SCA);
v. the exception to the principle of limited evidential value as applied in
S v S 1990 (1) SACR 5 (A);
5. Refreshing memory

1. RELEVANCE

Relevant evidence = evidence with the potential to make the existence of any fact in
issue more probable or less probable

- Pre-condition for admissibility

NOTE

- Previous consistent statements

- Similar fact evidence
- Character evidence
- Opinion evidence

Dependant on relevance for admissibility

General rule = inadmissible because irrelevant

Exceptions

2. INTRODUCTION: PREVIOUS CONSISTENT STATEMENTS

PREVIOUS CONSISTENT STATEMENTS (PCS) ‘it was an accident’ example

- Oral/written statement made by a witness some time prior to testifying in court

that is the same/sustainability similar to witness testimony in court
- GENERAL RULE: PCS = inadmissible because irrelevant

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 - General rule against admissibility of previous consistent statement also called “rule
against narrative” / “rule against self-serving statements”
- Corroboration should come from independent source and witness cannot
corroborate herself by pointing out that she had said the same thing before
- Witness may not be asked during exam-in-chief / cross-exam if made previous
statement consistent with evidence in court
- Previous consistent statement by witness may also not be proved by calling
another witness
- What about previous inconsistent statement?
o Generally admissible because relevant to credibility

3. RATIONALE FOR THE RULE

against previous inconsistent statements

- Inherently unreliable

 A lie can be repeated as often as the truth

- Danger of easy fabrication

 Risk of “self-made” evidence

- Superfluous (unnecessary)

 In ordinary course, witness’ evidence would be consistent with what she

said on other occasions about same topic/incident

Time-consuming and duplicative

- Previous consistent statement has very little probative force – it does not amount
to independent factual confirmation

4. EXAMPLE FROM CASE LAW

- Rex v Roberts [1942]:

o Accused (A) testified at trial that killing his girlfriend was an accident

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 o Not permitted to testify that, two days after the killing, he had told his father
that killing was an accident
o Court:

• “[A] party is not permitted to make evidence for himself. That law
applies to civil cases as well as criminal cases . . . The reason for the rule
[is] that such testimony has no evidential value. It is because it does
not assist in the elucidation of the matters in dispute that the
evidence is said to be inadmissible on the ground that it is
irrelevant.”

5. EXCEPTIONS TO THE GENERAL RULE

- Under influence of English common law — certain crystallised exceptions to

general rule (3):

o Numerus clausus – closed list

• To rebut an allegation of recent fabrication

• Prior Identification
• Complaints in sexual cases

TO REBUT ALLEGATION OF RECENT FABRICATION

- Recent = any time between the incident and the trial

- Situation — At trial, cross-examiner alleges / suggests to witness that she

fabricated her testimony

o E.g., specific evidence not elicited during exam-in chief, but for first time on
cross-exam
• Cross-examiner accuses/suggests to witness that, only reason why only
came to light now, is because she fabricated the testimony
- Attack must specifically be on witness’s so-called fabricated testimony, not general
assault on witness’s credibility

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 - On re-examination, witness may rebut accusation/suggestion of recent fabrication
by showing that, prior to her testimony, she had made oral/written statement
consistent with testimony in court

- Any time between incident and trial

- Previous consistent statement admitted for its relevance

o Because it has potential to rebut an attack on credibility of the witness

• CLEARLY RELEVANT

- Previous consistent statement not admitted for:

o Truth of content of statement

o Corroboration of witness’s testimony

(remember: general rule prohibiting self-corroboration)
- Evidential (probative) value of previous consistent statement is to show that
witness’s story was not concocted on later date

o Consistency is proved to refute allegation / suggestion of recent fabrication

PRIOR IDENTIFICATION – “DOCK IDENTIFICATION”

- Identification in court (so-called “dock identification”):

o Prosecutor asks witness to point out accused in court

o Of very little probative value

- Prior identification obviously carries more weight

o [R v Rassool 1932 NPD]: Has probative value and is relevant to show from very
start that witness who makes “dock identification” is not identifying accused for
first time, but has identified him on some previous occasion in circumstances
giving real weight to identification
o Only fact that same person was identified is admissible

PRIOR IDENTIFICATION – IDENTIFICATION PARADE

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- Police officer testifies that witness identified accused in identification parade

- Police officer gives evidence of process followed during holding of parade

- Prescribed safety precautions for holding identification parade have profound

effect on evidential value:

o At least 8 people

o Because part of investigative process — right to have legal representative

present
o Right to take photographs of identification parade

o Participants must be approximately of same height, build, general appearance,

gender, clothing*
o No requirement that behind one-way mirrors

o No two state witnesses may be present at the same time at any identification
parade (must be kept in separate rooms)
o Overarching requirement = fairness — goal is to prevent improper
influencing of witness

One guy in civilian clothes, the other seven in police uniforms

One guy battered and bruised, the rest not

One guy disheveled/clearly spent night in jail, the others refreshed and clean-shaven

COMPLAINT BY VICTIM OF SEXUAL OFFENCE

• Common-law rule:

 Evidence of voluntary complaint made by victim within reasonable time

(at first reasonable opportunity) after commission of alleged sexual offence
= admissible as previous consistent statement

• Common law REQUIREMENTs governing admissibility of complaint (previous

consistent statement):

 Complainant must testify

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  Complainant must have been victim of sexual offence

 Complaint must have been made at first reasonable opportunity

 Complaint must have been voluntarily (no duress or coercion)

 Complaint can only be admitted for limited purpose of proving

consistency

• Common-law rule has been subject of severe criticism:

 Does not have rational basis

 Potentially prejudicial to both complainant and accused

 Allows accused to argue that if victim did not make complaint at first
reasonable opportunity, the court should draw negative inference about
credibility of victim

 Fails to take into account research that confirms that silence on part of
victim is often legitimate psychological response to post-traumatic
stress caused by violent sexual nature of the crime
• Common-law rule has been abolished by statute in Canada and substantially
modified by statute in Namibia
• In South Africa, ss 58 and 59 of Criminal Law (Sexual Offences and Related Matters)
Amendment Act 32 of 2007 attempt to address these problems (Law reform
commission)

• S 58 of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32

of 2007:

 Court may not draw any inference only from absence of previous
consistent statement (complaint) by complainant in sexual offence matter
• S 59 of Criminal Law (Sexual Offences and Related Matters) Amendment Act 32
of 2007:

 Court may not draw any inference only from length of any delay between
commission of alleged sexual offence and reporting thereof
• Neither ss 58 or 59 makes any clear reference to conditions for admissibility of
previous consistent statements in sexual offence cases

 UTILITY OF THESE SECTIONS ARE LIMITED

 If the purpose was to completely revamp the common law rule, s58 + 59 did
not accomplish that

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 • Complainant must be victim of sexual offence:

 Offence must be of sexual nature — must be a victim and violence / some

physical element

 “Victim” includes people who may voluntarily participate but cannot give
consent:
• Children
• Mentally disabled

 (ss 58 & 59 expanded definition of “sexual offence” — See Schwikkard & Van
der Merwe 124—125)

• Complaint must have been voluntary:

• Not as result of intimidation

 S v T [1963 A]: Victim’s mother threatened to hit her if she refused to

disclose what accused had done to her

 Not as result of leading/suggestive questions

 “Why are you upset?” / “What happened to your clothes?” will not render
complaint inadmissible

 “Did X touch your private parts?” / “Did X assault you?” will render
answer inadmissible*
Can be in response to questions - as long as not leading/suggestive
 ss 58 & 59 has not altered this common-law requirement

 If complaint obtained as a result of violence/threat of violence — inherently

unreliable and lacks probative value — becomes irrelevant and inadmissible

 Also: coerced complaint may be excluded pursuant to s 35(5) of Constitution*

Evidence obtained in manner that violates any right in Bill of Rights must be excluded if
admission thereof would render the trial unfair or otherwise be detrimental to
administration of justice.

Victim must testify:

• Consistency cannot be shown if the victim does not testify in court

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• If the victim does not testify — both fact that complaint was made and content of
that complaint inadmissible
• Also, complaint will simply amount to hearsay if maker of complaint (the victim) is
not called to witness box
• ss 58 & 59 has not altered this common-law requirement

• First reasonable opportunity:

• What amounts to “first reasonable opportunity” largely depends on
circumstances of each individual case
• Essentially means that “complaint must be made at earliest opportunity
which, under all the circumstances, could reasonably be expected, and also
it must be made to the first person to whom the complainant could
reasonably be expected to make it” [S v Banana 2000 ZSC]
• Interpretation of “first reasonable opportunity” in court’s discretion and depends
on three factors:
• Presence/absence of person to whom victim could reasonably be expected
to make first complaint
• Whether/not victim was old enough/mentally developed enough to
understand unlawful nature of act
• Whether complainant, as result of lapse of time, possibly could have made
false complaint [S v V 1961 O]
• Complaints by young children have been admitted after periods of 5 days, 7 days, 10
days, and even 6 weeks

• First reasonable opportunity — application in case law:

• S v S [1995 ZS]:
• Accused (A), a school teacher, charged with rape of 11 year old girl at school
while in his care
• After rape, girl did not immediately report rape to school because wanted to
tell her mother first
• Judge held this was natural reaction of a young girl who had been
through traumatic experience
• When girl arrived home, she merely told her mother that teacher had
touched her private parts

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 • Judge held this erratic behaviour to be natural for sexually innocent 11
year old girl* (Schwikkard & Van der Merwe 121—122)
• At time girl had formed intention to tell her mother, she had been bleeding from her
vagina, but when she reached home the bleeding had stopped.
• She was also unaware that what A had done was unlawful.
• Complainant had history of misbehaviour and was frequently detained at school as
punishment.
• She did not want to trouble her mother with what she assumed was merely another
form of punishment.

• First reasonable opportunity — application in case law:

• S v Cornick [2007 SCA]:
• Complainant (C), 14 years old at time of rape, had waited over 19 years
before making complaint
• C had psychologically buried traumatic memory of rape
• Chance meeting with one of the rapists revived C’s buried memory, and she
laid charge of rape
• Appellants argued that it was improbable that complainant, if she had in fact
been raped, would not have told her grandparents or mother about rape
• SCA described case as “unusual”
• SCA held that there were plausible explanations for lengthy silence:
• C had been brought up by elderly and conservative grandparents
who never discussed matters of intimate nature with her
• C had distant relationship with her mother who had also never
discussed sex or physiology with her
• C had never had a boyfriend
• S v Cornick [continued]:
• In these circumstances she did not realise what was happening to her when
the three accused took turns raping her despite her protestations
• Not improbable that young woman who had buried the memory of
traumatic event for many years would not appreciate, until her mid-twenties
(at time when discussion and publicity about rape had become common),
full extent of what had happened to her
• Rape convictions of appellants confirmed

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• First reasonable opportunity:
• “First reasonable opportunity” requirement is remnant of Middle Ages — essential
for rape victim to have “raised the hue and cry”
• Now generally accepted that complainants in sexual offence cases do not
necessarily make immediate/prompt reports
• Authors opine that ss 58 & 59 have done away with this common-law requirement

• Limited evidential value:

• Common law — complaint only serves to prove consistency on part of victim

 Cannot create probability in favour of prosecution’s case

 Cannot corroborate victim

 Can prove consistency

• Ashworth: Evidential value of previous consistent statement:

 The fact that witness telling particular story at trial told exactly the same
story to the police soon after the alleged offence cannot supply
corroboration although it may well strengthen the evidence and rebut
any suggestion of recent fabrication.

 Repetition of story does not corroborate it — and this is corollary of

general proposition that the confirmatory evidence must come from
independent source
• Limited evidential value:
• However, there is one exception:

 General proposition does not apply in one carefully circumscribed set of

circumstances where self-corroboration is possible — by means of
victim’s distressed condition after alleged incident
• S v S [1990 A]:

 Extremely shocked condition (“uiters geskokte toestand”) of complainant

when se reported the rape considered strong corroboration of her
testimony that she was raped

 Two qualifications on this type of corroboration: Court must be satisfied

that
• distraught condition not faked; and
• If genuine, not attributable to something other than alleged
incident

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• ss 58 & 59 has not altered this common-law rule
• Present recollection refreshed:
• While giving evidence, witness may refresh memory from document that contains
statement made previously (witness forgets)
• Earlier statement:

 has no independent probative value

 does not become evidence

 only used as aid for practical purposes

• Only what witness says in box is evidence
• 2nd paragraph

• Past recollection recorded:

• Distinguished from present recollection refreshed
• Content of statement received as evidence
• No independent oral testimony

 Thus, issue of previous consistent statement does not arise

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