Voluntary conduct by a complainant that is inconsistent with their evidence (such as staying at the accused's house or writing a letter of thanks) can constitute a 'prior inconsistent statement' within the meaning of the Evidence Act 1995 Dictionary, because a 'representation' includes implied representations and representations inferred from conduct. Where the defence cross-examines on such conduct to suggest the alleged offences did not occur, the Crown may obtain leave under s 108(3)(a) to adduce evidence of a prior consistent statement to re-establish credibility. The Crown may lead evidence damaging to its own case, including evidence of prior inconsistent statements, in chief, and this may lay the ground for a s 108(3)(a) application, though the judge may take the Crown's volunteering of the evidence into account in deciding whether leave should be granted.
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