Tuesday, 17 August 2010

Inconsistent results

The most recent quiz from the Judicial College is about unfavourable witnesses and the admissibility of prior inconsistent statements. It came out a couple of months ago, but the JCV has moved a few things around on its website so I looked over it again.

The authors of the quiz give as broad a definition to the word inconsistent at s 38(1)(c) as NSW courts have given to the term unfavourable at s 38(1)(a). (The Act's Dictionary describes prior inconsistent statements, pretty unhelpfully, as a previous representation that is inconsistent with evidence given by the witness.)

I'd thought a witness who claims not to remember something would not be giving evidence inconsistent with a previous representation they have made. There's nothing inconsistent about a failure to recall, in the sense that it contradicts or casts doubt on the previous representation. But apparently that's not required. Stephen Odgers refers to Klewer v Walton [2003] NSWCA 308 as identifying both types of inconsistency potentially engaging s 38(1)(c).

Where the Evidence Act 2008 refers to a witness giving inconsistent evidence, it appears that the evidence given need only be different or not as the party who called them expected to be considered inconsistent.


Russell Ko said...

I think you may have confused consistency with congruence. Having no recollection of an earlier event is not incongruent, but it is inconsistent with their earlier statement.

Jeremy Gans said...

Doc, it's a little ambiguous. Her response was 'No, not that I can remember'. I think that's arguably a denial, rather than just a failure to remember, and hence inconsistent. Especially given that a gun is hardly something you'd just forget about anyway.

Russel, I think you may have confused 'inconsistent' with 'different'. Not remembering something you once remembered isn't inconsistent - What did you have for breakfast on 1 January 1992? I don't remember. But I remember asking you that day and you said you had Coco Pops! You're so inconsistent! - but it is different. It may also be incongruous depending on whether the facts were especially memorable (e.g. Have you slept with Elle MacPherson? I don't remember. But you once told me that you had!)

I quite liked this quiz. I got more than 50% 'wrong' in the previous ones, but this time the only problem I had was with Q10. (I said s103, as the witness may admit to having earlier said that she saw a gun. That would be dire for her credibility, of course.)

Rebecca said...

Having just done the test (and got 4 out of 12 - I do not like this test! :-( ) I agree with the last comment.

The witness by saying "I don't remember" is actually saying they don't want to give that evidence. Which is the same thing as giving unfavourable evidence. If she actually didn't remember her evidence would still be unfavourable but wouldn't be inconsistent. Its inconsistent that she claims to have forgoit it in such a short time.

I like this site keep up the good work.

Dr Manhattan said...

I'll yield to the will of the majority on this one.

I wasn't taking into account the inherent improbability of failing to recall something significant like being shown a gun. It's not an uncommon experience for everyone, of course, but we don't know enough about Gitanjali to draw inferences one way or the other.

Having had a fresh look at it I agree that her answer was probably supposed to imply insincerity. Though under s 38(1)(a) the subjective intention of the witness is not very important it might be a consideration when considering inconsistency. NSW decisions hold that a failure of recall can give rise to objectively unfavourable evidence, but I think 38 is a poor remedy for a witness's failure to remember. (If for no other reason than it makes ss 32 and 34 largely superfluous.)

Thanks also to Stephen Warne for a contribution to this post.