Report No. 69

III. English Law

81.11. Inconsistent statement in England.-

So much as regards the gist of section 145. It may be of interest to compare the English law. In England, the present law is this1-if a witness is asked whether he has made a former statement, relative to the subject-matter of the proceeding (that is, not merely relating to credit), which is inconsistent with his present testimony, the circumstances of the supposed statement being mentioned to the witness, and he does not admit that he made the statement, proof may be given that he did make it.2

The statement may have been oral, and may be proved by oral evidence.3If the statement was made in writing or reduced to writing, the witness need not be shown the writing,4 unless it is intended to contradict him, when his attention must be called to the parts of the writing which are to be used for contradicting him. He may be handed the paper, told to look at it, and asked if he still adheres to his previous answer .5

The judge may require the writing to be produced, and may make such use of it for the purpose of the trial as he thinks fit6. It will be produced in any event if it has to be proved to contradict the denial of the witness. Even if the witness admits the inconsistency, counsel for the party calling the witness may require that the document shall be produced, and any privilege attaching to it may be waived by its use in cross-examination.7

The principal statutory provisions are to be found in the Criminal Procedure Act, 1865, sections 4 and 5. These sections apply in both civil and criminal cases. Section 4 concerns oral statements, and section 5 concerns written statements. The two sections read-

"4. If a witness, upon cross-examination as to a former statement made by him relative to the subject matter of the indictment or proceeding, in consistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement.

5. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing relative to the subject-matter of the indictment or proceeding, without such writing being shown to him; but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: provided always, that it shall be competent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he may think fit".

The Civil Evidence Act8 makes previous inconsistent statements admissible evidence of the truth of what they assert. In criminal cases, the former rule that they go only to show inconsistency still continues to apply.

1. Nokes Introduction to Evidence, (1967), p. 146.

2. Criminal Evidence Act, 1865, section 4; R. v. Hart, (1957) 42 CAR 47 (50); subject to rebutting evidence, R. v. Whelan, (1881) 14 Cox CC 595.

3. R. v. Hart, (1957) 42 CAR 47 (50), cited by Nokes Introduction to Evidence, (1967) p. 146.

4. He cannot insist on seeing it: North Australian Territory Co. v. Goldsborough Port & Co., (1893) 2 Ch 381 (386) (CA).

5. Criminal Procedure Act, 1865, section 5; R. v. Yousry, (1914) 11 CAR 13 (18). But it is not evidence against another person; see R. v. Smith, 1962 Cr LR 844 CCA.

6. Criminal Procedure Act, 1865, section 5.

7. Burnell v. British Transport Commission, (1956) 1 QB (CA).

8. Section 3(1)(a), Civil Evidence Act, 1968.

IV. Use of Previous Statements

81.12. Use of impeaching statement-not substantive evidence.-

Previous contradictory statements of parties are useful as admissions also. But, in the case of other witnesses, impeaching the statements of non-party witnesses cannot be considered as proof of the facts stated in the declaration. They are limited only to discrediting the testimony which the witness has given in court. The impeaching statements of a non-party witness are confined to discrediting the testimony he gives in court. The usual reason given for this position is that the out-of court statements are hearsay.1

However, it may be mentioned that in England, in civil cases, previous written statements are, by statute, made general evidence,2 as already stated.

1. Mason Ladd Impeachment of Witness, (1967) 52 Cornell LQ 239, 249.

2. Section 3, Civil Evidence Act, 1968, (supra).

81.13. Problems in jury trials.-

This position may create problems in jury trials, since a jury may find it difficult to distinguish between the impeaching effect and the substantive effect. In Bartley v. United States, 319 F ed 717 (719, 720) (DO Cir 1963), cited by Mason Ladd Impeachment of Witness, (1967), 52 Cornell LQ 239, 249. Judge McGowan observed:

"The error resides, rather, in the treatment of the statutory purpose for which the prior inconsistent statement was admissible. This is stated in terms to be that "only of affecting the credibility of the witness". The differentiation, of course, is between this rigorously limited objective, and the one of proving as a fact what is contained in the statement. The crucial character of this distinction has been recognised and emphasised by this Court. Without the protection of an admonition or instruction from the court to the latter end, we cannot say that the jury did not give weight, when it was not entitled to do so, to the prior written statement and feel itself free to choose between the conflicting versions".

81.14. The position, therefore, has not escaped criticism. In United States v. De Sisto, 329 F ed 929 (933) (2d Cir), cert. denied, (1964) 377 US 979. Judge Friendly expressed approval of the use of prior inconsistent statements for substantive purposes, stating:

"The sanctioned ritual seems peculiarly absurd when a witness who has given damaging testimony on his first appearance at a trial denies any relevant knowledge of his second; to tell a jury it may consider the prior testimony as reflecting on the veracity of the later denial of relevant knowledge but not as the substantive evidence, that alone would be pertinent is a demand for mental gymnastics of which jurors are happily incapable. Beyond this the orthodox rule defies the dictate of common sense that 'the fresher the memory, the fuller and more accurate it is'."

It is, however, unlikely that this approach will find many adherents in India. Moreover, since there are no juries in India, the criticism becomes inapplicable to India.

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