Practitioners seeking to admit or exclude prior consistent statements must satisfy the trial judge that the witness's evidence has been attacked as a recent fabrication, that the prior statement is to like effect, and that it rationally tends to answer the attack; appellate courts will give great weight to the trial judge's determination.
Later decisions that cite Nominal Defendant v Clements
Decisions cited by Nominal Defendant v Clements
THE NOMINAL DEFENDANT v. CLEMENTS [1960] HCA 39; (1960) 104 CLR 476
Evidence
High Court of Australia
Dixon C.J.(1), McTiernan(2), Kitto(3), Menzies(4) and Windeyer(5) JJ.
CATCHWORDS
Evidence - Admissibility - Credit of witness impugned - Suggestion of recent fabrication - Prior statement to same effect admissible - Duty of trial judge - To determine that testimony attacked on ground of recent fabrication or that foundation for such an attack laid - To determine that contents of prior statement are to like effect as testimony and that it tends to answer attack - Great weight to be given to trial judge's determination by appellate court.
HEARING
Sydney, 1960, May 13, 16;DECISION
June 28.2. A girl who at the time of the accident would have been thirteen years of age said that she had been playing with the ball but had put it under the stand. She was standing near some posts and the staging and suddenly found herself pinned by the car against the staging. She looked and saw the plaintiff on the ground. A youth a little older said that he heard the girl scream and looked. He saw the boy under the car. The plaintiff was cross-examined for the purpose of showing that he had had no memory of the accident and that his account of it was the result of coaching by his father who had written out answers for him to learn. A doctor who gave evidence of the plaintiff's condition said that the plaintiff had said six months before the trial that he had no recollection of the details of the accident. (at p478)
3. To rebut the suggestion that the plaintiff's account of the accident was an afterthought reconstructed for the purpose of the litigation the plaintiff's counsel tendered a statement which a sergeant of police had obtained from the boy two months after the accident. The statement was objected to but was admitted in evidence. The new trial is sought by the Nominal Defendant upon the ground that the statement was inadmissible. It contained an account of the accident expressed in two sentences viz.: "About 11.20 a.m. on 1st May 1954 I walked up the roadway from Dee Why Surf Club and stood about six feet from the gutter in the Strand at Howard Avenue. I was looking at the grandstand and all I know is I was knocked down." (at p479)
4. No doubt the strength of the defendant's contention lay in the evidence of the youth who said that the ball had gone bouncing on to the road and the plaintiff had gone on to the road to get it. If the jury were minded not only to regard this as a correct account of the occurrence but also to treat it as negativing liability in the defendant one may be permitted to doubt whether they could have been in the least influenced to the contrary by the brief allusion in the plaintiff's statement to his having stood about six feet from the gutter in the Strand looking at the grandstand. In all the circumstances of the case the contention that the statement ought not to have been admitted seemed a somewhat flimsy ground for a new trial application. On the other hand I have had some doubt whether the conduct of the trial by counsel for the defendant really gave sufficient ground for letting in the statement as evidence. The rule of evidence under which it was let in is well recognized and of long standing. If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self-serving statement made by the witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court. It is evident however that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack. It is obvious that it may not be easy sometimes to be sure that counsel is laying a foundation for impugning the witness's account of a material incident or fact as a recently invented, devised or reconstructed story. Counsel himself may proceed with a subtlety which is the outcome of caution in pursuing what may prove a dangerous course. That is one reason why the trial judge's opinion has a peculiar importance. (at p480)
5. In the present case counsel for the Nominal Defendant disclaimed any attack on the honesty of the plaintiff's account of the accident. But although upon the evidence as recorded it is difficult to feel assured that a foundation had been laid for an attack upon the boy's story as a late reconstruction it was, I think, fairly open to the judge at the trial to conclude that the defendant would set up a case that the plaintiff's story was the result of the father's coaching and represented no antecedent memory of the events, and that is perhaps enough. But there is yet another difficulty. For after all the statement to the police sergeant says very little and might be explained not altogether unreasonably as the kind of thing a policeman might put down after obtaining but the barest account of the accident from a child, who ex hypothesi had little or no recollection of the event in detail. But that apparently was not the view taken at the trial by either party. (at p480)
6. On the whole I am not prepared to overrule the view of the judge at the trial and in any event, as appears from what I have already said, I do not feel disposed to attach the same importance to the document as the defendant has done in supporting his appeal. In the result I think the appeal should be dismissed. (at p480)
McTIERNAN J. I agree. In my opinion it is not shown that the learned trial judge erred by admitting in evidence the statement dated July 1st, 1954 which the plaintiff made to the police. The statement was tendered by the plaintiff's counsel. The plaintiff gave evidence that he was standing on the side of the road and was watching children playing with a ball when he was run down by the motor car. The defendant's counsel sought to make, upon the cross-examination of the plaintiff, the case that the plaintiff was playing with the children and ran on to the road after the ball. Having failed to get from the plaintiff any admission to support that case, he cross-examined the plaintiff at great length in order to destroy his credibility. The view which I take from reading the cross-examination is that the defendant's counsel sought to elicit from the plaintiff that he had no recollection whether he was standing still or running on the road when he was struck by the motor car, and that his father had coached him to give his evidence. If that view is correct, the cross-examination would have led the jury to think that counsel was suggesting that the evidence that the plaintiff was standing still when run down by the motor car was a recent invention. The statement dated July 1st, 1954 was consistent with the evidence given by the plaintiff, which the defendant's counsel sought to suggest was the result of coaching, not of the plaintiff's own recollection. In my opinion, the statement was receivable in evidence not as proof of the fact which it mentions, but to re-establish the plaintiff's credit. At the trial, counsel for the defendant disavowed that he intended to charge that the plaintiff's evidence that he was standing still when run over was an invention and that the only purpose of the cross-examination as to credit was to test the plaintiff's recollection and to show, if he could, that the plaintiff's father was endeavouring only to refresh it. But reading the transcript, the cross-examination seems to me to have gone further and to have suggested that the plaintiff's father did implant in the plaintiff the crucial idea that he was standing still when run over, not merely that he helped the plaintiff to recollect that fact. It may be that it is a fine point, which view of the cross-examination is the correct one. I think the cross-examination is reasonably capable of the inference which I have drawn from it. The learned trial judge who heard it was in the best position to consider whether the cross-examination was likely to impress the jury as an attempt to get from the plaintiff that his evidence was what his father told him to say, not what he himself recollected. The details of the questions asked in crossexamination and the manner of asking them, revealed by the transcript, could reasonably lead to the conclusion that the cross-examination involved such an attempt. I think that it is not possible to hold that the learned judge erred by admitting the statement in question. (at p481)
KITTO J. I agree in the judgment of the Chief Justice. (at p481)
MENZIES J. The only matter for decision on this appeal is whether at the trial in which the plaintiff recovered 2,000 pounds damages for personal injuries suffered on 1st May 1954 when he was knocked down in the street by an uninsured motor car, evidence was admissible of a written statement relating to the accident which he made to a police officer on 1st July 1954. The learned trial judge, against objection on behalf of the defendant, admitted the statement, and the Full Court (McClemens and Collins JJ., Owen J. dissenting) decided that his Honour was correct in doing so and refused the defendant's application for a new trial. (at p482)
2. The plaintiff was a boy nearly seven years of age when the accident occurred and eleven years of age at the date of the trial in December 1958. His evidence in chief was that while he was standing near the edge of The Strand, Dee Why, looking out towards the ocean and watching other children playing with a ball in the vicinity of the war memorial there, he was hit in the back by a car that he did not see, knocked down and injured. Cross-examination elicited that he took some part in the game that was going on, at least to the extent of kicking the ball when it came to him, and it was suggested to him that he was knocked down when he darted out into the street after the ball. This he denied. In the course of his cross-examination, the plaintiff admitted that he had been coached to give evidence by his father, that some time in 1958 he had dictated a statement to his father which the father had written down and he had tried to learn, and that it was hard to remember some answers. Dr. Listwan, a medical witness called for the plaintiff, in the course of cross-examination - based upon information supplied by another doctor who had been present for the defendant at the witness's examination of the plaintiff - was asked whether in June 1958 the plaintiff told him that in relation to the accident "he had no recollection of any of the details of the matter at all". To this question, the witness answered "Yes". Later, however, he said that in October 1958 he saw the plaintiff again and made a note "Tells the story of the accident today". The plaintiff himself, when cross-examined about his conversations with the doctor, said he could not remember anything of them. It appeared upon his re-examination that in the course of his preparation to give evidence, he had written down three or four other statements about the accident. His counsel tendered one of these written statements, but this was objected to and rejected - a decision not now challenged. In the course of the discussion leading up to the rejection of this statement, counsel for the defendant said: "I am testing his memory. I am not suggesting the boy is giving false evidence." This statement has been relied upon as a disclaimer of any imputation that the plaintiff's account of what happened had been fabricated. (at p482)
3. At the end of the plaintiff's case, a police witness, Sergeant Turner, was
recalled and produced the statement the admissibility
of which is in question.
It was as follows:
"21 The Strand,
Dee Why 1. 7. 54
Perry Bruce Clements states: -
I am a schoolboy, and live with my mother and father at
21 The Strand, Dee Why. I was 7 years on 24th May 1954.
About 11.20 a.m. on the 1st May, 1954 I walked up the
roadway from Dee Why Surf Club and stood about 6 feet
from the gutter in The Strand, at Howard Avenue, I was
looking at the grandstand and all I know is I was knocked
down.
PERRY CLEMENTS
Witness
Harry R. Turner
Sergeant 2nd Class." (at p483)
4. In the course of his summing up, the learned trial judge said: "The
plaintiff was cross-examined, and cross-examined at very
considerable length
by Mr. Lusher - who was pursuing the suggestion that the boy was coached to
give his evidence in this case, and
was coached by his father. You probably
will think there is a very strong inference that this boy was in a sense
coached by his father.
Do you think there is anything wrong with that;
provided that the coaching was to tell the truth and not to give false
evidence?
. . . Mr. Lusher certainly cannot be criticized for advancing the
criticism of this boy. It is his duty to do so. You will give his
criticism
such weight as you think fit. But you may bear in mind that there was a
statement made by this boy to Sergeant Turner.
It was made on 1st July, 1954.
You will remember that he came out of hospital on 29th June and he was seen by
the police and he signed
this statement". Here his Honour read the statement
and asked: "Is that inconsistent in any way with the evidence he gave here?"
These observations hardly made it clear to the jury that the document admitted
could not be treated as evidence of the happening
of the accident, but only as
tending to show that the plaintiff's story had not been concocted during the
preparation for his giving
evidence. No point was taken, however, about the
sufficiency of the direction once the document had been admitted; it is the
admissibility
of the document that was and is in question. (at p483)
5. Notwithstanding the so-called disclaimer, I am satisfied that the cross-examination of the plaintiff and Dr. Listwan could not but convey the suggestion that the plaintiff's evidence was not based upon any recollection of the accident but upon a story that he had learnt between June and October 1958. In the course of discussion between counsel and the learned trial judge upon the question of the admissibility of the statement dictated to the plaintiff's father which was rejected in the circumstances referred to previously, his Honour had said: "The rule is, where it is suggested a witness is giving evidence which is a recent fabrication, then evidence may be admissible to show, consistently with his story he had made a similar statement, or statement similar to his evidence at some anterior time, which would negative the suggestion of recent fabrication"; and it was no doubt in accordance with this statement of the law that the document of 1st July 1954 was admitted. If the rule is as stated by his Honour, I have no doubt, for the reason just given, that the document was properly admitted. The critical question, however, is whether his Honour's statement is a correct statement of the law. (at p484)
6. Until towards the end of the eighteenth century, it was accepted that the evidence of a witness could be corroborated or confirmed by an earlier statement consistent with his evidence. By the time of R. v. Parker (1783) 3 Dougl 242 (99 ER 634) , the contrary view had been established and it was said that Lutterell v. Reynell (1670) 1 Mod 282 (86 ER 887) , which was treated as authority for the earlier rule, was no longer the law. The rejection of previous statements as corroboration in every case did not, however, involve the rejection of confirmatory statements in any case, as the following statement from the Notes to Pothier on Obligations, by Sir W. D. Evans, vol. ii, p. 251, appropriately appended to the report of R. v. Parker (1783) 3 Dougl 242 (99 ER 634) , so aptly recognizes: "According to the principles of correct reasoning, the propriety of the evidence in this case . . . must depend upon the nature of the object which it is intended to attain. In an ordinary case the evidence would be at least superfluous, for the assertions of a witness are to be regarded in general as true until there is some particular reason for impeaching them as false; which reason may be repelled by circumstances, showing that the motive upon which it is supposed to have been founded could not have had existence at the time when the previous relation was made, and which therefore repel the supposition of the fact related being an after-thought or fabrication. The suspicion of an opposite conduct may result either from the inherent nature and complexion of the evidence itself, or it may be indicated by the imputations actually thrown out in cross-examination or otherwise, by the opposite party". These observations draw attention to a critical principle sometimes overlooked - that it is the particular circumstances of the case that determine whether or not an earlier statement consonant with the evidence given by a witness is itself admissible. Notwithstanding the earlier rule, it is now firmly established that an earlier statement is not admissible merely as confirmation of the evidence given by the witness; furthermore, if there be nothing more than that the evidence of a witness has been attacked in the course of cross-examination, that does not of itself render admissible earlier statements by the witness consonant with his evidence. (at p485)
7. It is more doubtful whether when (to use the language of the valuable annotation relating to consistent statements appended to the case of Sweazey v. Valley Transport (1940) 140 Am LR 1 ) "the credibility of a witness is assailed because, on some former occasion, he has made statements that differ from his statements under oath at the trial, his sworn testimony may not be corroborated by proof that on other occasions and at other times his statements were in harmony with his testimony" (1940) 140 Am LR, at p 49 . The learned author of the annotation observes that the admission of the former statement in such circumstances is against the weight of authority, and in this connexion he cites as English authority Jones v. South-Eastern & Chatham Railway Co.'s Managing Committee (1918) 87 LJKB 775; (1918) 118 LT 802 . In that case, a woman claimed workmen's compensation from her employer for an accident which allegedly occurred at her employer's premises. At the hearing she was cross-examined about statements made by her to third parties to the effect that the accident happened at her home. Evidence that on two occasions within two days after the accident she had made complaints that injury occurred at work were rejected. The following observations of Swinfen Eady L.J. and of Neville J. were approved by the Privy Council in Gillie v. Posho Ltd. (1939) 2 All ER 196 where their Lordships were dealing with a case where a witness had without any justification been allowed to corroborate himself by producing a letter that he had written earlier. Swinfen Eady L.J. said: "It was argued that there is in certain cases a rule under which a witness may be asked to give particulars of what a person has said shortly after an occurrence, and the complaint that such a person may have made shortly after an occurrence, not as being evidence of the facts complained of but as being evidence of the consistency of the story of the complainant from beginning to end, and it is said that such a question ought to have been admitted in the present case on that principle. The answer is twofold; first that the principle has no application to a case of this kind. No doubt in cases especially of violence upon women and girls the rule is established under which a question of that kind is allowed to be put . . . That is a special class of case. . . . Secondly, this statement was made two days after the alleged accident, and not shortly afterwards. If a statement of that kind were admitted, it would be easy to manufacture evidence by telling your various friends, and then calling them as witnesses to prove what you had told them" (1918) 87 LJKB, at pp 777, 778; (1918) 118 LT, at pp 804, 805 . Neville J. said: "We have simply to apply here the general rule of evidence that statements may be used against a witness as admissions, but that you are not entitled to give evidence of statements on other occasions by the witness in confirmation of her testimony" (1918) 87 LJKB, at p 779; (1918) 118 LT, at p 805 . As will be seen later, Herring C.J. and Gavan Duffy J. in Franklin v. Victorian Railways Commissioners (unreported) have expressed the opinion that a former statement is not in general admissible to re-establish the credit of a witness whose evidence has been impeached by proof of a previous contradictory statement. (at p486)
8. The problem with which we are here concerned, however, is different, although it may often happen that the proof of a prior inconsistent statement made by the witness is associated with the suggestion that a witness has recently fabricated his evidence. There is such an association here, and one may think that the same complexion could have been put upon what happened in Jones's Case (1918) 87 LJKB 775; (1918) 118 LT 802 . It is not inevitable, however, that there should be such an association, and it frequently happens that a prior inconsistent statement is proved for a purpose other than that of suggesting recent fabrication, e.g., to expose or correct a faulty recollection. (at p486)
9. The exception that a prior consistent statement may be proved to rebut a charge of recent contrivance is one that is now generally recognized by text book writers: see Rupert Cross, Evidence (1958) p. 207; Nokes, An Introduction to Evidence (1952) p. 120; Phipson on Evidence 9th ed. (1952) p. 512; Roscoe's Evidence in Civil Actions 20th ed. (1934) vol. 1, p. 186; Starkie on Evidence 4th ed. (1853) pp. 253, 254; Wigmore on Evidence 3rd ed. (1940) vol. 4, para 1129; Halsbury's Laws of England 3rd ed., vol. 15, p. 449 ("Evidence" - par. 810). Of these, the earliest and one on which later statements have not improved, except to make definite what was expressed tentatively, is that of Starkie: "It seems to be the better opinion that a witness cannot be confirmed by proof that he has given the same account before, even although it has been proved that he has given a different account, in order to impeach his veracity; . . . his having asserted the same thing does not in general carry his credibility further than, nor so far as, his oath. But although such evidence be not generally admissible in confirmation of a witness, there may be manu cases where under special circumstances it possibly might be admissible; as for instance in contradiction of evidence tending to show that the account was a fabrication of late date and where consequentially it becomes material to show that the same account had been given before its ultimate effect and operation, arising from a change of circumstances, could have been foreseen." Such statements are admissible not to prove the truth of the facts stated but merely to show the consistency of the witness's assertions. The problem is discussed in the annotation already referred to (140 Am. L.R. 21) and at p. 93 there is to be found the following statement: "The principal exception to the general rule of evidence that the statements of a witness out of court, consistent with his testimony, are inadmissible, is the one mentioned by Story J. in Ellicott v. Pearl (1836) 10 Pet (US) 411 (9 Law Ed 475) , that where the testimony of the witness is assailed as a fabrication of recent date, or as a complaint recently made, proof of the antecedent declarations of the witness consistent with his testimony may be received, in order to repel such imputation". For this statement the learned annotators cite a wealth of American authority. (at p487)
10. There is, however, but little direct authority for the exception under discussion in cases decided by English courts. In Reg v. Coyle (1855) 7 Cox CC 74 , a witness was allowed, upon examination in chief, to state that he had given the same account upon his cross-examination at a previous trial, apparently on the ground that his veracity had been impugned by certain witnesses to prove the contrary. This decision, if it depends upon the exception under consideration, may possibly have gone beyond what are now its accepted limits. In R. v. Benjamin (1913) 8 Cr App R 146 , a police witness who, having been cross-examined upon his omission in an earlier deposition to state that he had kept watch upon a gaming house from an adjacent chimney, was allowed to prove that he had mentioned the chimney in an earlier report to his inspector. In R. v. Roberts (1942) 1 A11 ER 187 , dealing with an argument on appeal that the accused's statement to his father made soon after his arrest was admissible evidence on the ground that the accused had been asked in cross-examination whether his story of accident was not a recent concoction, Humphreys J. said: "If any such question had been put, undeniably the evidence would have been admissible as showing it was not recently concocted, because the accused had said so on the very day the incident occurred" (1942) 1 All ER, at p 191 . The only other case that I have found which might be thought in point is O'Gorman v. O'Gorman (1912) 56 Sol Jo 634 , where it was decided that when a wife and a co-respondent had, before her marriage, lived together, a letter from the co-respondent to the wife written within two years of her marriage saying: "Just think, it is two years since I held you in my arms", was admissible in corroboration of their sworn denial of adultery. (at p488)
11. In Ireland, the exception with which we are now concerned has received a good deal more elaboration than it has in England. In Reg. v. Coll (1889) 24 LRIr 522 , it was held that C, a witness against A on a charge of the murder of B, could be asked whether he had sworn that he saw A throw stones at B, to rebut the suggestion that he had fabricated his evidence against A because in another deposition he had not mentioned A as a person present at the attack upon B. In the course of the judgment, it was said: "As a general rule neither upon direct examination nor re-examination is evidence of previous statements made by a witness admissible to confirm or set up the credit of such witness. Under special circumstances, evidence of such previous statements may be given . . . The cross-examination was (it is said - probably truly said) capable of a double interpretation; and the point for our consideration is whether looking at the entire cross-examination, we should interpret it as conveying the same imputation as if a direct question had been put, charging him" (i.e., the witness) "in terms with recent invention of his story. There can be no difference in principle, whether the imputation is made by one straight question or by skilful circuity of interrogation, if the same meaning is conveyed". In Flanagan v. Fahy (1918) 2 IR 361 , it was decided that when a witness was called to prove that he was offered a bribe to support a will and was cross-examined to show that he was hostile to the propounder, it was admissible to prove that prior to such hostility the witness had stated that he had been offered such a bribe. (at p488)
12. In New South Wales Jordan C.J. on two occasions referred to this exception from the rule that consistent statements are in general inadmissible. In Smith v. Commonwealth Life Assurance Society Ltd. (1935) 35 SR(NSW) 552, at p 556 , after saying that, in general, a witness cannot strengthen his evidence that something happened by saying that he told somebody of it, his Honour said: "Evidence of this type may be given only where some suggestion of after-thought has been made, e.g. in cross-examination which calls for rebuttal : Thompson v. The King (1918) AC 221, at p 232 ". It may be remarked that the reference to Thompson v. The King (1918) AC 221 is to show that "it is not permissible to conjure up imaginary difficulties for the purpose of overcoming them by otherwise inadmissible evidence" (1935) 35 SR (NSW) 552, at p 556 rather than as authority for the Chief Justice's proposition first quoted. In Britton v. Commissioner for Road Transport (1947) 47 SR (NSW) 249; 64 WN 16 , Jordan C.J., speaking for himself, Davidson and Street JJ., said: "It is well established that if a witness, whether he be a party or not, gives evidence, it is not permissible to support his evidence by proving that on some previous occasion he made a statement to the same effect: Gillie v. Posho Ltd. (1939) 2 All ER 196, at pp 200, 201 . To this rule there are two equally well-established exceptions. First, in the case of sexual offences, evidence of timely complaints is admissible, not as evidence of the commission of the offence, but to rebut consent and negative the possibility that the charge is an after-thought, a possibility which exists in a special degree in this class of case; and second, in any case, civil or criminal, in which it is sought to suggest that the evidence which the witness is giving is an after-thought, concocted by him after the event, evidence that he made a similar statement shortly after the event in question is admissible, not as evidence of the event, but to rebut the suggestion that his evidence is a belated concoction" (1947) 47 SR (NSW), at p 251; 64 WN, at p 17 . (at p489)
13. The exception has also been the subject of consideration by the Supreme Court of Victoria. In Woodward v. Shea [1952] VicLawRp 40; (1952) VLR 313 , Sholl J. decided substantially upon the two Irish cases to which I have referred, that where the purpose or the possible effect of cross-examination of a witness who has refreshed his memory from a document containing a statement made by him prior to the hearing is to suggest recent invention of his evidence, counsel for the witness may, on re-examination of the witness, tender in evidence the document itself. After referring to the state of the evidence, Sholl J. said: "I think I cannot exclude the possibility of a suggestion by counsel upon the basis of that evidence, or an inference by the jurymen or one of them on the same basis that those answers might indicate recent invention" (1952) VLR, at p 317 . Subsequently, in Frankcombe v. Holloway [1957] VicRp 17; (1957) VR 139 , the same learned judge decided that where, in the course of either examination in chief or cross-examination, the evidence of a witness may reasonably appear to be of recent invention, evidence of prior consistent statements made by that witness may be admitted merely to establish the credit of the witness, and not to establish the truth of their contents. Finally, in Franklin v. Victorian Railways Commissioners (unreported) Sholl J. adhered to the view which he had expressed in Woodward v. Shea [1952] VicLawRp 40; (1952) VLR 313 that it is sufficient to render admissible in re-examination a prior statement consistent with the witness's testimony if the cross-examination may reasonably have been taken by the jury or by one or more of them to suggest recent invention. Herring C.J. and Gavan Duffy J., having referred to Woodward v. Shea [1952] VicLawRp 40; (1952) VLR 313 , adopted the proposition "that a former statement made by a witness is generally inadmissible to re-establish his credit when impeached by proof of a previous contradictory statement except when the witness is charged with having recently fabricated the story", which, as I indicated earlier, draws what I regard as a correct and important distinction between merely proving a previous contradictory statement and going further to impeach the witness's evidence as a fabrication. (at p490)
14. This review of the authorities does establish the rule which the learned judge applied in admitting the plaintiff's statement of 1st July 1954. It seems to me that in some of the cases to which I have referred, the rule is too widely stated or the evidence admitted went beyond what a strict application of the true rule would authorize. I regard evidence of an earlier consistent statement as admissible in accordance with this exception only when the Court itself considers that the evidence of a witness has been impeached as a later contrivance and this has been done by the opposite party in the conduct of the case, whether by the cross-examination of the witness, or by eliciting evidence of the fabrication from another witness, or in some other positive way. (at p490)
15. I have already stated my opinion that in this case the cross-examination of the plaintiff himself and of Dr. Listwan did, as his Honour found, carry the suggestion that the plaintiff's story was a recent fabrication. Accordingly, I think that within the exception, his statement of 1st July 1954 was admissible to rebut that suggestion. (at p490)
16. For these reasons, I think this appeal should be dismissed. (at p490)
WINDEYER J. The testimony of a witness, given on oath in the witness box, cannot ordinarily be supported by evidence that earlier and elsewhere he had said the same thing. In New South Wales in civil proceedings without a jury this principle has been qualified by the Evidence Act, s. 14B (enacted by Act No. 35 of 1954 s. 2 (b)). But that provision has no application either in cases tried before a jury or to the evidence of interested parties. This case, therefore, depends upon purely common law rules which, like so much of the law of evidence, were firmly established only in the nineteenth century. The earlier doctrine, as stated in Hawkins, Pleas of the Crown, Bk. 2, c. 46, was that "what a witness hath been heard to say at another time may be given in evidence in order either to invalidate or confirm the testimony that he gives in court". And Gilbert C.B. took the same view in his Law of Evidence, published in 1756 (p. 153), saying that "though hearsay be not allowed as direct evidence yet it be in corroboration of a witness's testimony to show that he affirmed the same thing on other occasions and that the witness is still consistent with himself". But in R. v. Parker (1783) 3 Dougl 242 (99 ER 634) , Buller J. said that the passage in Hawkins "is not now law" (1783) 3 Dougl, at p 244 (99 ER, at p 635) . And soon thereafter a more strict analysis of probative values showed that, although inconsistent utterances may undermine credibility, mere repetition of a statement does not tend to show it to be true. Thus the rule that prior consistent statements are inadmissible became settled. Here we are concerned with an exception to this rule. It is a recognized exception. But, as Collins J. observed in his judgment in this matter, "there is a danger that the salutary rule that a witness cannot corroborate his own evidence by previous self-serving statements be departed from unless the true meaning of the phrase 'recent invention' is clearly recognized and the exception kept strictly within its own limits". I go therefore to see what limits have been set to the doctrine relied upon here to make the plaintiff's statement to the sergeant of police admissible. (at p491)
2. In Phillips on Evidence (1814), after a discussion of the reasons for the main rule excluding evidence of statements made by a witness out of court which are consistent with his testimony, it is said that: "In one point of view, a former statement by the witness appears to be admissible in confirmation of his evidence; and that is, where the counsel on the other side impute a design to misrepresent from some motive, of interest or relationship, etc.; there, indeed, in order to repel such an imputation, it would be proper to show, that the witness made a similar statement at a time when the supposed motive did not exist, or when motives of interest would have prompted him to make a different statement of the facts". An anticipation of this appeared in W. D. Evans' work on the English law of evidence which forms an Appendix to his translation of Pothier on Obligations, published in 1806. The passage, which is quoted by my brother Menzies, was appropriately enough set out by Roscoe in a footnote to the report of R. v. Parker (1783) in volume 3 of Douglas's Reports, the volume compiled by Roscoe and published in 1831 from manuscripts left by Sylvester Douglas, Lord Glenbervie. Evans' statement is especially interesting because he speaks of the evidence as admissible "to repel the supposition of the fact related being an after-thought or fabrication" (Roscoe misquotes this as "falsification"); and these phrases became and continue to be the common currency of text writers and judges for the exposition of this topic. For examples: In Starkie on Evidence 3rd ed. (1842) vol. 1, p. 222 it is said of prior consistent statements that, "although such evidence be not generally admissible in confirmation of a witness, there may be many cases where under special circumstances it possibly might be admissible; as, for instance, in contradiction of evidence tending to show that the account was a fabrication of late date, and where consequently it becomes material to show that the same account had been given before its ultimate effect and operation, arising from a change of circumstances, could have been forseen". Perhaps the first judicial use of this phraseology was by Story J. in delivering the judgment of the Supreme Court of the United States in Ellicott v. Pearl [1836] USSC 38; (1836) 10 Peters 412, at p 439 : "there are exceptions; but they are of a peculiar nature . . . as where the testimony is assailed as a fabrication of recent date, or complaint recently made; for there in order to repel such imputation proof of the antecedent declaration of the party may be admitted". (at p492)
3. In cases of rape and sexual assaults, evidence is admitted of complaints made shortly after the occurrence. Such evidence and that of the kind here in question are often referred to together, because each provides an exception to the rule that earlier statements by a witness consistent with his testimony in the box are inadmissible. But, otherwise than as exceptions to the same rule, the two classes of evidence are not related. The historical origin of the rule about complaints, and the grounds on which it is commonly justified, are peculiar to it; and it operates to make evidence of the complaint admissible in chief to support the credibility of the testimony of the complainant. The doctrine here in question is, on the other hand, concerned with evidence admissible to restore the credit of a witness, after it has been impugned in a particular fashion, by letting in evidence that ordinarily would be excluded. The important question for present purposes is, therefore, what is to be taken as impugning the testimony of a witness in this fashion. (at p493)
4. As broadly stated in Taylor on Evidence 12th ed. (1931) p. 941, para 1476, he must be "charged with a design to misrepresent in consequence of his relation to the party, or to the cause; in which case it may be proper to show that he has made a similar statement before that relation existed". Accusations or suggestions, made in cross-examination or by independent evidence, that what a witness says in the box is a recent fabrication are the commonest way of charging such a design to misrepresent. But expressions such as "recent fabrication", "after-thought", "recent invention", "belated concoction" all presuppose some period or point of time. The clearest case is when it is suggested that the witness and one X, an interested person, had on a given date concocted a false story for the witness to tell in the box. Proof that at an earlier date, and before the witness had ever met X, he had made a statement consistent with the evidence said to have been fabricated will obviously refute that. Evidence of such a statement is therefore admitted, not as any proof of the facts stated, but to rebut the suggestion of fabrication on or after a particular date. In circumstances so plain the ground and purpose of the rule are clear. As Ronan L.J. put it in the Court of Appeal in Ireland in Flanagan v. Fahy (1918) 2 IR 361 : "if a witness is charged with having invented and fabricated a story in consequence of a certain transaction, is it not open to him to show that this charge is false by proving that he had told the story long before the transaction in question? Surely there can be no doubt that in any rational system of law he must be allowed to do so" (1918) 2 IR, at p 389 . Difficulties arise only when it is sought to apply the principle in circumstances not quite so plain. For, although the English text-books, Phipson, Roscoe and others, recognize the rule, the illustrations they give of its application are few. Of the cases they refer to only two, both in Ireland, Reg. v. Coll (1889) 24 LR Ir 522 and Flanagan v. Fahy (1918) 2 IR 361 , have much in point for present purposes. In the United States, however, there are many reported cases with a wealth of careful discussion in several jurisdictions. The main authorities are referred to in Wigmore, 3rd ed. (1940) vol. 4 para 1128, 1129; Jones on Evidence, 5th ed. vol. 4, s. 960; 58 American Jurisprudence, Witnesses s. 828, see especially s. 829 as to limitations on the rule; and especially in 140 American Law Reports Annotated 21-186, being an annotation to Sweazey v. Valley Transport there reported. (at p494)
5. The kind of imputations and allegations that - if sufficiently clearly made - will let in prior consistent statements are: First, that the witness's testimony is a recent fabrication, in the sense of being invented at or after a particular time. Evidence that he had said the same thing before that time becomes admissible. Secondly, that his testimony was the result of some motive, bias, influence or moral duress operating from some particular time and not before. Evidence that he had said the same thing before that time becomes admissible. The two situations can obviously overlap and in many of the cases in which the evidence was admitted elements of both operated. (at p494)
6. The description in Taylor on Evidence quoted above, "a design to misrepresent", is misleading. A fraudulent design on the part of the witness is not essential. As Sholl J. has pointed out (Woodward v. Shea [1952] VicLawRp 40; (1952) VLR 313 ; Frankcombe v. Holloway [1957] VicRp 17; (1957) VR 139 ), a suggestion of of recent invention does not necessarily involve a suggestion of deliberate falsification or a determination to commit perjury. It may, especially in the case of a young child or susceptible person, mean no more than that, at some time since the occurrence of which he speaks, some persuasion or influence or suggestion has been brought to bear on him, so that his testimony is not of what he saw and remembers but is what he has been induced to say. (at p494)
7. Another situation that has sometimes been referred to as a separate ground for admitting such evidence must be noticed. Bigelow J. in the Supreme Court of Massachusetts, in the course of a convincing examination of principle in Commonwealth v. Jenkins (1858) 10 Gray 485 , after referring to cases where the evidence was admitted to rebut an imputation of bias, said: "Another similar class of decisions, resting on a like principle, is also to be distinguished from the case at bar, namely, when an attempt is made to impeach the credit of a witness by showing that he formerly withheld or concealed the facts to which he has now testified. In such cases, it is competent to show that the witness, at an early day, as soon as a disclosure could reasonably have been made, did declare the facts to which he has testified". But this, I think, requires explanation lest it be misapplied. The mere fact that a witness admits that he did not on some occasion, when he might have done so, speak of some matter or circumstance of which he gives evidence in the box does not let in evidence that on still another occasion he did speak of the matter. Simply because a witness is shown to have made a statement inconsistent with his testimony, evidence that he had also made consistent statements does not become admissible. And it does not become any more admissible if the inconsistent statement is not an actual utterance or writing, but is the eloquence of silence or of conduct. If, however, a witness's silence or omission to mention some circumstance, on an occasion when he might have done so, is made the basis for a suggestion - as it often may be - that he has invented it since that occasion, then evidence is admissible that on a still earlier occasion he did speak of it. That is only an example of what the author of the annotation in 140 American Law Reports Annotated, 21-186, calls "a charge of recent fabrication predicated on the witnesses' delay or omission to speak or act". (at p495)
8. It is for the trial judge to decide whether there has been an attack on the evidence of a witness of such a character as to let in his earlier consistent statements. The trial judge not only hears counsel's questions. He hears the tone of them and is conscious of the suggestion they would convey to the jury. As Dodd J. put it in the King's Bench Division in Ireland in Flanagan v. Fahy (1918) 2 IR 361 , "there can be no difference in principle whether the imputation is made by one straight question or by skilful innuendoes of interrogation if the same meaning is conveyed. What, then, did the cross-examination mean? How would it reasonably be understood?" (1918) 2 IR, at p 375 . But the evidence is only to be let in when the grounds for doing so clearly exist. It is not enough that a witness has been cross-examined as to credit, however much his credibility may appear to have been shaken (Britton v. Commissioner for Road Transport (1947) 47 SR (NSW) 249; 64 WN 16 ; Smith v. Commonwealth Life Assurance Society Ltd. (1935) 35 SR (NSW), at p 556 ). There must be an imputation, clearly made and not unequivocally disclaimed, that the witness is not speaking from his own recollection of events, but is recounting a story subsequently made up by him or for him. Furthermore, the statement which it is sought to use to dispel this imputation must be made in such circumstances that it logically does so. For if evidence be attacked as a recent fabrication, the attack is not repulsed by proving another statement, itself the product of pressure or of a motive to falsify. And, finally, if evidence of an earlier statement be received, the grounds for doing so should be made clear to the jury lest they should regard it as evidence of the facts stated. (at p495)
9. Applying these principles the learned trial judge was, in my opinion, right in admitting the statement the plaintiff made to the sergeant of police. The way in which this document came into existence was not established. The sergeant was merely asked by counsel "did you take a statement from Perry Clements?" and by his Honour "you took it yourself did you?". He answered "Yes" to both questions. He was not further examined nor cross-examined about the circumstances. Yet the plaintiff was then a little boy only six years old; and his father was already contemplating litigation on his behalf. But, on the bare facts proved as to the obtaining of the statement, it became admissible as a result of the course of the trial and the cross-examination of the plaintiff and the doctor. No exception was taken to the failure of the learned trial judge to direct the jury as to the purpose for which it was admitted. (at p496)
10. I would add that I respectfully agree with the Chief Justice in thinking that, even if the statement was not properly admissible, it by no means necessarily follows that its admission would in the circumstances be a ground for a new trial. There was no attack on the plaintiff's general story, merely a suggestion in cross-examination that when he was struck by the car he was not standing still but running in pursuit of a ball. This the plaintiff denied. No evidence was called for the defendant. If evidence be improperly excluded, a new trial can nearly always be had as of right. But the improper admission of evidence does not necessarily have the same consequences, especially if the evidence admitted be merely superfluous to the case of one party and not really prejudicial of the case of the other. I referred to this difference between improper exclusion and improper admission of evidence in Balenzuela v. De Gail [1959] HCA 1; (1959) 101 CLR 226, at pp 242-244 . (at p496)
11. I agree that the appeal should be dismissed. (at p496)
ORDER
Appeal dismissed with costs.