Admissibility of prior inconsistent statement

Notion(s) Filing Case
Decision on Impeachment - 01.02.2008 POPOVIĆ et al.

31. The Appellants’ also misconstrue the Limaj Decision in arguing that it stands for the proposition that the contents of any previous inconsistent statement may only be received into evidence for assessing the credibility of the witness. To the contrary, the Limaj Decision affirms that such evidence may be admitted as hearsay evidence for the truth of its contents when it fulfills the criteria under the Tribunal’s Rules of being relevant and sufficiently reliable to be accepted as probative.[1] It also bears noting that this approach is consistent with the position at common law which has evolved alongside developments in the law on hearsay in recent years to allow for the admission of a prior inconsistent statement adduced in this manner for the truth of its contents.[2] While the position at common law is in no way determinative of the issue, it would seem unsound to adopt a stricter approach on this point.

[1] Limaj Decision, paras. 18, 21.

[2] In Canada, the traditional common law rule limiting the use of prior inconsistent statements to impeaching the credibility of the witness was overturned by the Supreme Court of Canada in the case of R. v. B. (K.G.), [1993] 1 S.C.R. 740. The Court found that the existing rule had been attenuated by developments in the law of hearsay. It held that prior inconsistent statements should be substantively admissible on a principled basis, the governing principles being the reliability of the evidence and its necessity. In the United States of America the traditional common law rule was abandoned by the Federal Rules of Evidence, 28 U.S.C. app., Rule 801(d): “A Statement is not hearsay if … (1) Prior statement by witness - The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition”.  In Australia the Evidence Act 1995 C.C.A. provides at section 60: “The hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of the fact intended to be asserted by the representation. With reference to section 60 see Adam v. The Queen 207 CLR 96 at 37: “by s. 60 of the Act, the prior statements would be admitted as evidence of the truth of their contents. But that difference brought about by s. 60 was one of the significant alterations in the rules of evidence that the Act was intended to effect. No longer were tribunals of fact to be asked to treat evidence of prior inconsistent statements as evidence that showed no more than that the witness may not be reliable. The prior inconsistent statements were to be taken as evidence of their truth.” In the United Kingdom, see the Criminal Justice Act 2003 c. 44 Pt 11 c 2, s 119: “(1) If in criminal proceedings a person gives oral evidence and (a) he admits making a previous inconsistent statement, or (b) a previous inconsistent statement by him is proved by virtue of section 3, 4 or 5 of the Criminal Procedure Act 1865 (c.18), the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible.” See e.g. R v. Joyce, [2005] EWCA Crim 1785; R v. K N, [2006] EWCA Crim 3309.

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