EXAMINATION OF WITNESSES
Previous Consistent Statements (PCS)
The PCS rule is also known as the Rule against Self Corroboration or the Rule against the
Narrative.
Historically and at common law a witness was not allowed to testify that on an earlier
occasion s/he made a statement that was consistent with the testimony. In other words, it’s a
statement that was made outside court, not under oath, but it indicated the line of defence the
defendant/accused would have adopted. Such a statement is inadmissible. PCS consist of
either written statements or verbal agreements made prior to the court hearing, which
correspond with the witness account in court.
The rationale is that:
1. It is generally held that PCS are insufficiently relevant and therefore where they are
relevant they become admissible.
2. PCS can be easily fabricated.
3. In most cases the evidence is superfluous and at any rate witness evidence ought to be
consistent with what s/he said earlier.
4. PCS have the capacity to raise numerous side issues courts may not have any business
investigating.
R v. Roberts 1 ALL ER 187
The accused was charged with murdering a girl. He shot the girl when she was entering his
room. There had been a quarrel between them earlier on. The accused argued that the gun
had gone off accidentally as a defence and he wanted murder to be reduced to culpable
homicide. Two days after the incident, the accused had told his father his defence. The court
a quo refused to admit such evidence by ruling it was a PCS. This position was upheld in the
court of appeal.
(See also Corke v. Corke & Cook 1958 ALL ER 224)
However there are exceptions to the rule
1. To rebut an allegation
If in cross examination a witness account is challenged as recent fabrication, witness
may support himself by evidence of earlier statements made by the witness. In these
circumstances PCS are used as a defence shield.
Flanagan v. Faly 1980 ER 41
A witness who had testified about the forgery of a will was asked in cross
examination that he had invented his story because of bad blood between him and the
accused (beneficiary of the will). The witness was allowed to call corroborative
evidence to show that long before the enmity had arisen he had told a third party
about the story he was now telling. The court was satisfied that the previous
statement if correct would be relevant.
2. Prior identification
PCS have been used in cases relating to prior identification e.g. an accused being
identified by the witness in court after earlier identification outside the court at an
identification parade.
R v. Christier 1914 AC 545
A little boy gave evidence that he had been indecently assaulted and identified the
accused in the court as the man, but did not say anything about prior identification.
Evidence was given by his mother and a constable that shortly after the assault the
boy had pointed out the accused to them. The House of Lords agreed that this
evidence was admissible because the pointing out and the statements accompanying it
had taken place in the presence of the accused (the presence of the accused is
irrelevant to the rule under discussion), but they also considered its admissibility on
the separate ground that it was evidence of a prior act of identification
3. Complaints of a sexual nature
Evidence of complaints made by witnesses in cases of rape, indecent assault, etc has
traditionally been accepted in court as having relevance. Victims of a sexual assault
were traditionally expected to tell somebody about it because if they kept quiet about
it adverse inferences would be drawn. It is called the Hue and Cry doctrine. To guard
against malicious reports or an honest error that could be made safeguards have been
introduced;
a. The complaint must have been made at the first reasonable opportunity that
presented itself. No undue delay. There is, however, no hard and fast rule on the
time frame. Each case must be decided on its merits.
R v. S 1955 (4) SA 40
Charge involved rape. Court admitted as evidence a complaint made to the
mother of the victim 5 days after commission of the crime. The court took the
opportunity to clarify the legal position pertaining to complaints in sexual cases.
The complaint must have been voluntary, not as a result of leading or suggestive
questions or after intimidation. The complaint must have been made at the
earliest opportunity to the first person to whom the complainant is reasonably
expected to report to. In this case, the court observed that the complainant was
too young to understand the nature of the offense perpetrated upon her.
b. The report must not be elicited by leading questions. The mere fact that a
statement is an answer to a question is not itself sufficient to make it inadmissible
as a complaint. Much would depend on the manner of questioning; a non-
suggestive question e.g. ‘what is the matter?’ would not render complaint
inadmissible, on the other hand it would be if the manner of questioning is leading
in nature.
R v. Osbourne 1905 1 KB 551
The owner of a fish and chips restaurant was alleged to have indecently assaulted
a 13 year old, complainant looked very distressed. Statement was made upon the
question that why are you going home? Court said that if circumstances indicate
that but for the question there probably would not have been voluntary complaint
then the answer would be inadmissible. If the person merely anticipates the
statement the complainant wanted to make it is not rendered inadmissible by the
fact that the questionnaire happened to speak first.
Where threats by the questionnaire are of a leading nature and procure the making
of the complaint, its voluntary nature is destroyed and the evidence of the
complaint becomes inadmissible.
S v. T 1963 (1) SA 484 (A)
A mother noticed that her child had been sexually assaulted and threatened to
beat her with a stick unless she revealed who had done it. The child made a
complaint against her step father, but the Appellate Division excluded it on the
grounds that it had been elicited by intimidation.
NB: Complaints of a sexual nature are not restricted to females only. Also applicable
to male complainants as long as they are victims.
R v. Camallen 1922 2 KB 122
Accused charged and tried for a case involving gross indecency with a 12 year old
boy. Judge admitted evidence by the prosecutor that shortly after the complaint was
made thereof, the lad had complained to his parent. Accused objected to the
admissibility of the evidence, saying that the circumstances applied to prosecution
involving women and girls. Court held that no authority in precedence which states
that the mere fact that the complainant is male renders the particulars of the
complaint inadmissible.
If the complainant gives no evidence at all, neither the terms of the complaint nor the
fact that it was made can ordinarily be admitted. Sometimes, however, the complaint
may have some additional relevance.
S v. R 1965 (2) SA 463 (W)
A complaint of rape was made almost immediately after the incident while the
complainant was still distressed and weeping. By the time of the trial the complainant
was suffering from amnesia and remembered nothing. Trollip J held that the
complainant’s statement and condition were relevant to show her state of mind at the
time of the incident and to rebut a defence of consent.
There is considerable debate in law on whether the victim must testify to show
consistency between particulars of the complaints made in extra curial circumstances
and the statements that are being made in the court of law.
One school of thought says that if the complainant for good and understandable
reasons is unable to attend court, the evidence of PCS is still admissible.
The second school of thought seemingly represents a current legal statement that as
long as the complainant has not testified there is no story to be consistent with. If the
accused is to be convicted under those circumstances it has to be on other admissible
and credible evidence.
Victims in sexual cases also include voluntary participators to a sexual act in cases
where the law does not recognise the ability of that person to consent in terms of the
Sexual Offenses Act.
Refreshment of Memory (See Section 19 of Civil Evidence Act [8:01])
Any witness, whilst giving evidence, may refresh his memory from any document, where it is
proved that the document was made by him or was made on his instructions or was first read
by him, at a time when his recollection of the facts set out in the document could reasonably
be supposed to be fresh in his mind.
A witness is given access to a written document, contemporaneous with the event because
1. Time lapse between occurrence of event and the trial itself makes it necessary.
2. Complexity of the case may justify refreshment.
3. Some people or professions because of the nature of their jobs find themselves in
court often and some of the cases may be similar.
Cape Coast Exploration v. Scholtz & Anor 1933 AD 56
Court held that it is not necessary for a witness to have independent recollection of the facts
mentioned in the document put to him in order to refresh his memory.
The document used has to satisfy two conditions,
1. Authenticity
This means:
a. Witness must have made the document or recording himself.
b. Alternatively it was made on the specific instructions of the witness.
c. Or the witness had the document read to him by a third party and accepted its
accuracy.
R v. O’lin 1960 (1) SA 545
Traffic Officer testifying in a case involving a road accident case was allowed to refer
to and refresh his memory from a note which another officer had made from his
specific say so.
2. Contemporaneous
It must be taken together with authenticity. It looks at the time lapse and the
recording. The general rule is that the entry must have been made by the witness
either at the time of the occurrence of the event or shortly afterwards that it was still
fresh in the witness’ memory. Reasonableness is situational, depends on the
circumstances of the case. Apart from physical time lapse a lot will depend on the
nature of the event under discussion and the impact it has made on the mind of the
witness.
Anderson v. Whaley [1975] ER 460
A ship captain was allowed to use the ship’s log book to refresh his memory
concerning a navigation accident. It was allowed despite the fact that the log book
had been kept by the ship’s mate. The crucial point was that the captain had
approved the record within a week of the event taking place, when the event was still
fresh in his mind.
Jones v. Metcalfe [1967] ER 460
Bad driving by a lorry driver caused a collision involving 2 cars, an independent
witness who saw the event unfold memorised the lorry’s number and later reported it
to the police. At the trial the independent witness was unable to remember the
number, but the policeman could, however, he was not a direct witness. On appeal
the person to whom the number had been given could not testify because doing so
would be admitting hearsay evidence. Court said that if the independent witness had
been able to say he gave the number to a police officer and saw him writing down the
number then the evidence would have been admissible.
R v. Isaacs 1916 (1) TPD 390
Recording took place 8 days after the occurrence of the event. Court held that in the
ordinary scheme of things one would still be expected to remember.
Jones v. Shroud
A witness could not refresh his memory from a record made 6 months after the event
because the court considered that the event had lapsed so the memory might be
unreliable.
3. Original Documents
The witness must be able to produce an original copy of the document being referred
to.
4. Production
A witness who uses a document to refresh his memory must be prepared to produce it
for inspection to the opposing party and to the court. The witness may claim privilege
for the other parts and if necessary cover them up.
The opposing party must be given an opportunity to cross-examine. The idea behind cross-
examination is to highlight to the court the unreliability of evidence that has been rendered
maybe because there is inherent bias on the part of the witness or because they might not
have perceived the events accurately or because the witness is lying. The witness may be
asked about the circumstances in which he came to make it and to produce any earlier drafts
or the original if he has referred to a copy.
Evidential Value of a Document
At common law, a document used to refresh memory is not evidence except in so far as it has
been adopted in the witness’s oral testimony. If there is no objection the document may be
handed in as a convenient record of his evidence.
The conditions to be satisfied for a document is used to refresh memory were also highlighted
by the Supreme Court in Mabu Estates v. Pimbs Chase farm SC 46-86.
