Prior Complaint Evidence under the Evidence Act 2006: the Supreme Court Jurisprudence

Abstract

In 1989 the Law Commission began researching avenues for reform of New Zealand’s outdated and disorganised statutory rules of evidence. Its aim was to produce a body of “clear, simple and accessible” laws to clarify the confusion surrounding the common law, the Evidence Act 1908, and various statutory amendments. The product of the Commission’s research and subsequent recommendations is today found in the Evidence Act 2006 (“the Act”). A significant and problematic change arising from the Act is the creation of a new rule in s 35 relating to the admissibility of evidence of a witness’s previous statement that is consistent with their testimony. The Act does not alter the common law position that evidence of a prior consistent statement is generally inadmissible (known at common law as the “rule against the narrative”). Instead, it enacts two exclusive exceptions to the rule that are fundamentally different to the exceptions used at common law. In particular, the exception enacted in s 35(2) creates an entirely new process for the admission of such evidence whereby a witness’s previous consistent statement can now only be admitted under s 35(2) if it responds to a relevant challenge. This is fundamentally different from the common law “recent complaint” exception, where evidence of a prior complaint in a sexual case made at the first reasonable opportunity was, in general, automatically admissible. This paper discusses the relevant components, policies and problems of s 35, with particular focus on evidence of prior complaint in sexual cases. Some of the difficulties raised by s 35 include the meaning of “statement” under s 4 of the Act, and in particular, whether evidence of a prior complaint without substance meets this definition in order to fall within the previous consistent statement rule in the first place. The introduction of the new concept of a “challenge” to the exception to the exclusionary rule has also required explanation. Perhaps more important however, is the complex procedural difficulty necessitated by the “challenge” as a precondition to offering evidence of a prior consistent statement under s 35(2). It is the concept of a “challenge”, but specifically, when it will be triggered, that has beleaguered the Supreme Court in a number of recent cases which are the primary focus of this paper. I will begin by examining the elements of the exclusionary rule as contained in s 35(1). I will then turn to the exception to the rule that is of relevance to evidence of prior complaints as contained in s 35(2), to understand both the nature of the new requirement of a challenge and its practical triggers, in conjunction with the requirement that evidence be admitted only in response to the challenge. I will look at the different ways in which the Supreme Court has tried to work around the technicalities of s 35(2) in the case of Rongonui v R, where a majority of the Court considered that a relevant challenge may be triggered at a pre-trial stage. I consider the implications of the decision in Rongonui and the ways in which the decision has been adopted in subsequent Supreme Court cases at different stages of the trial process. My argument is that, whilst creating a welcome codification of the common law rule against the narrative, the difficult requirement of a challenge and when it will be triggered has produced a body of case law that is anything but clear, principled and accessible. With the Act to be revised late 2012 I submit that a reform option proposed by the Ministry of Justice is an appropriate alternative to the current law, presenting a more general and simplistic statutory reform. It is consistent with the principles and purpose of the Act to do away with not only the complicated statutory provision in its present state; but also to prevent contradictory precedents arising from appellate courts.