You may or may not have heard the phrase ‘prior inconsistent statement’ in a legal setting before. A prior inconsistent statement is used to refer a scenario where someone makes a previous statement that is inconsistent with a later statement they make. Exposing a prior inconsistent statement can be an important part of any criminal defence strategy. At a minimum, it challenges the witness about their evidence. In some cases, a prior inconsistent statement can undermine the whole of the witness’ reliability or credibility, resulting in their evidence being given no or limited weight by a court or jury.
Section 43 of the Evidence Act sets out the circumstances in which a witness can be cross-examined about a prior inconsistent statement. Whilst statements made in anticipation of court or outside of court might often be inadmissible in criminal proceedings as hearsay evidence, if established to be a prior inconsistent made by the witness, it will generally apply as an exception to the hearsay rule so as to be admissible evidence in cross-examination.
Prior inconsistent statements can arise in a range of scenarios. Imagine a scenario where you are charged with a common assault arising out of an incident at a bar. You plead not guilty and contest the matter at a hearing. One of the key issues at the hearing is identification – that is, the identity of the person who is alleged to have committed the offence is in doubt. A key prosecution witness, who observed the assault happen, is giving evidence in court. They describe the alleged offender as a middle-aged man, wearing a white button-up shirt, chinos and a pair of brown boots. You know that this witness previously provided a written statement to police, in which they describe the alleged offender as a middle aged-man wearing black shoes, chinos and a black button-up shirt. There is a clearly an inconsistency there. Armed with that information, what do you do?
The first step is to put the inconsistency to the witness. If they admit they have made a prior inconsistent statement, you have done what you needed to do. If the witness does not admit they have made a prior inconsistent statement, there are limits on what you can do from there. Typically, the best course is to first establish with the witness enough of the circumstances surrounding their previous statement to enable them to identify it, and then show them their previous statement. When showing such a document to the witness, the Court or the prosecution could ask you to show it to them.
What is the significance of a prior inconsistent statement? Well, it depends. In some cases, it may mean the witness is not particularly reliable in their evidence. It might be that their memory of an event is not strong, but it doesn’t necessarily mean they are being dishonest. However, it some cases, it may expose a witness as fundamentally lacking in credibility and someone who is prone to not telling the truth. In hearings or trials where the prosecution case largely depends on the testimony of a single witness, the damage to that witness’ credibility, through a prior inconsistent statement, can oftentimes make or break the case.
Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney (02 9696 1361), Canberra (02 5104 9640) and Perth (08 6255 6909) to make an appointment to speak to one of our lawyers.
