4.13 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)[1]

4.13.3 – Charge: Prior Inconsistent Statements

When to Use this Charge

This charge is designed to be used in cases where:
·  Evidence of a prior inconsistent statement has been admitted under Evidence Act 2008 s103 or 106; and
·  That evidence can be used for both a hearsay and non-hearsay purpose.
If the judge has limited the use of the evidence under Evidence Act 2008 s136 the charge should be modified accordingly.
The judge should discuss the proposed charge with counsel before instructing the jury. See Bench Notes: Directions Under Jury Directions Act 2015 for information on when the direction is required.

Introduction

In this case you heard evidence that [insert details of evidence given in court]. In response, the [prosecution/defence] alleged that NOW had previously given a different version of events.[2] [Describe prior inconsistent statement and identify the alleged inconsistencies.]

If you accept that NOW made this statement, there are two ways you can use it.

First, you can use the contents of the statement as evidence in the case. For example, you could use NOW’s statement that [describe part of the statement] as evidence that [describe relevant asserted fact].

Secondly, if you find that NOW’s statement is inconsistent with his/her account in court, you may use the statement when assessing his/her credibility and reliability. You may find that the fact that NOW had previously given an inconsistent account means that the evidence s/he gave in court is less likely to be truthful or accurate. You may therefore be less willing to accept his/her evidence. It is for you to determine whether or not to draw this conclusion from any inconsistencies you find.

You should keep in mind the fact that a witness who gives inconsistent accounts is not necessarily lying. While dishonest witnesses are more likely to introduce inconsistencies in their stories, truthful witnesses may make mistakes about details.

If you do find that NOW’s statement is inconsistent with his/her evidence in court, you will have two different accounts from the same witness. It is for you to determine which account, if any, to believe.

Differences in complainant’s account

[In sexual offence matters, where the judge, after hearing submissions, considers there is evidence that suggests there is a gap, inconsistency or difference in the complainant’s account of the offence charged that is relevant to the complainant’s credibility or reliability, the judge must give a direction about that gap, inconsistency or difference. See Charge: Differences in Complainant’s Account.]

Section 32 Unreliability Warning

[In some cases it will be necessary to warn the jury about the potential unreliability of the evidence under Jury Directions Act 2015 s32. See Charge: Unreliability of Hearsay Evidence for an example of such a warning.]

2

[1] This document was last updated on 29 June 2015.

[2] If the inconsistent statement is adduced during cross-examination as an unfavourable witness under s38 of the Evidence Act 2008, this may need to be modified accordingly.