Witness Statements and Inconsistencies

How Police Obtain Witness Statements

Police obtain witness statements through several mechanisms:

Scene Statements

Initial accounts taken at or near the scene of an alleged offence. These are often brief, captured in police notebooks, and may be taken in circumstances of stress or emotional disturbance.

Formal Statements

Written statements prepared at police stations, typically using standard templates. Statements are usually typed by police officers based on information provided by the witness, then presented for signature.

ERISP Interviews

Electronically Recorded Interview of Suspected Persons (ERISP) captures defendant interviews on video. This creates a contemporaneous record of questions and answers.

Subsequent Statements

Witnesses may provide additional statements as investigations progress. These may add detail, clarify matters, or address issues raised by other evidence.

The Relationship Between Statements and Oral Evidence

In NSW criminal proceedings, oral evidence is the primary form of testimony. Written statements serve several functions:

• Memory aid: Witnesses may refer to statements to refresh memory before or during evidence
• Disclosure: Statements inform the defence of the prosecution case
• Impeachment: Prior statements may be used to challenge credibility if oral evidence differs
• Hearsay exceptions: In limited circumstances, statements may be admitted for their truth

Common Issues with Police Statements

Police Language and Phrasing

Statements are typically typed by police officers, not witnesses. This introduces potential issues:

• Police terminology may not reflect witness's actual words
• Witnesses may sign statements without reading carefully
• Translation issues where English is not the witness's first language
• Leading questions may shape the content

Memory Decay and Reconstruction

Human memory is reconstructive, not reproductive. Statements taken days or weeks after events may contain reconstructed details influenced by:

• Discussions with others
• Media coverage or social media
• Natural memory decay
• The process of repeated retelling

Stress and Trauma Effects

Statements taken immediately after traumatic events may reflect the witness's emotional state rather than accurate recall. Conversely, delayed statements may be affected by post-event processing.

Omissions

What is absent from a statement may be as significant as what is present. If a witness now testifies to a matter not mentioned in their statement, questions arise about why it was omitted.

Identifying Inconsistencies: A Systematic Approach

CORE Defence Lawyers applies the Credibility Assessment Matrix to systematically identify and categorise inconsistencies. The process involves:

1. Gather All Versions

Collect every version of the witness's account:

• 000 call recordings
• Scene notes (police notebooks)
• Formal police statements
• APVO applications
• Hospital records (history given)
• Text messages to third parties
• Social media posts
• Prior court evidence

2. Create a Chronological Matrix

Map each version chronologically, noting when each account was given and to whom. This reveals the evolution of the narrative over time.

3. Identify Variations

Compare versions to identify:

• Direct contradictions: Account A says X; Account B says not-X
• Additions: Details appearing in later accounts not present in earlier ones
• Omissions: Details present in earlier accounts absent from later ones
• Variations: Details changing in degree or specificity

4. Categorise by Significance

Apply the central/peripheral distinction:

• Does the inconsistency relate to an element of the offence?
• Does it affect the reliability of the account on central matters?
• Is it explicable by normal memory variation?

5. Develop Cross-Examination Strategy

Use identified inconsistencies to prepare focused cross-examination that:

• Highlights contradictions without aggressive confrontation
• Allows the witness opportunity to explain (or fail to explain)
• Establishes the inconsistency through documents rather than accusation

Evidence Act Provisions on Inconsistent Statements

Section 43: Cross-Examination as to Prior Statements

A witness may be cross-examined about prior inconsistent statements without first putting the statement to them, unless the court directs otherwise.

Section 106: Credibility Evidence

The credibility rule (section 102) does not prevent evidence being admitted to prove that a witness has made a prior inconsistent statement.

Section 108: Re-Establishing Credibility

Where a witness's credibility has been attacked, the party who called them may adduce evidence of prior consistent statements in limited circumstances.

Section 38: Unfavourable Witnesses

Where a witness gives evidence unfavourable to the party who called them, that party may seek leave to cross-examine on prior inconsistent statements.

Defence Approaches to Statement Evidence

Comprehensive Disclosure Review

Request all material relating to witnesses, including:

• All statements (not just those relied upon)
• Police notebook entries
• Officer notes of conversations
• COPS event narratives

Subpoena Relevant Records

Third-party records may contain prior accounts:

• Hospital records (triage notes, clinical notes)
• Counselling records
• Child protection records
• Prior court files

Prepare Focused Cross-Examination

Use the Credibility Assessment Matrix to prioritise inconsistencies for cross-examination. Focus on central inconsistencies that cannot be satisfactorily explained.