Proving a prior inconsistent statement made by a witness

No one has a perfect memory. It is often the case in a trial that a witness will not remember every detail in their statement or may give an inconsistent version. If you intend to rely on an inconsistency to discredit a witness, there is a proper way to cross-examine on a prior inconsistent statement. The relevant legislation is found in sections 18 and 19 of the Evidence Act (Qld) 1977.

If a witness gives an earlier account, often in the form of a written statement, which differs from what he later says in court, s 18 allows counsel to prove that prior inconsistent statement was made. The section has two requirements before proof may be given of this earlier statement. Firstly, counsel needs to identify for the witness the circumstances when the statement was made with sufficient particularity. Second, the witness must be asked whether or not such a statement was made.

In practical terms, once the requirements in section 18 have been complied with and the witness admits in court to previously giving a different account, then that is the end of the matter. The prior inconsistent statement has been proven and the inconsistency can later be used in closing address to attack the credit of that witness.

The following scenario provides an example of a prior inconsistent statement.

In a prosecution under the Workers’ Rehabilitation and Compensation Act (Qld) 2003, the defendant gave evidence in court that he had injured his right hand at work. However, in an earlier written statement to his employer he had stated that he had injured his left hand. Before proof can be given of this prior inconsistent statement, counsel would firstly need to ask the defendant whether he previously spoke to his employer on a particular date about the workplace incident. The defendant must also be asked whether he told his employer he injured his left hand. The defendant may concede he previously stated he injured his left hand to his employer.

It should be noted if the earlier statement is in writing, counsel does not have to show the document to the witness (s 19(1)). A common mistake by counsel is launching into reading the witness’s earlier statement without going through these preliminary steps first.

If the witness maintains he did not previously state he injured his left hand, s 19(1A) requires that the witness’s attention be drawn to the parts of the document intended to be used to contradict the witness. In other words, the written statement can be shown to the witness to give him the opportunity to reconsider his answer.

Once the prior inconsistent statement has been proven, s 101 of the Evidence Act renders the statement admissible as evidence of any fact stated therein of which direct oral evidence by the person would be admissible’.

While the focus here has been on proving a prior inconsistent statement, care should be taken to ensure your opposing counsel in a trial also abides by these rules, and objection taken if prior inconsistent statements are not properly put to a witness.

The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.

Published: 11 April 2016

Author: Maita Aylward