22. Prior Inconsistent Statements — s 43 (Vic)¶
Scope and currency
Reference sheet · Evidence Act 2008 (Vic) ss 38, 43, 45, 60 + credibility (ss 103, 106) & the jury directions
A cross-examination tool with a double life. A prior inconsistent statement (PIS) is a previous representation that is inconsistent with the witness's in-court evidence (Dictionary) — verbal, written, or inferred from conduct (R v Selsby; R v KNP). You cross-examine on it (s 43); it enters through the credibility exceptions (ss 103, 106); and once admitted, s 60 lets it prove the truth of what was said — except admissions (s 60(3); Lee). How you adduce it depends on whose witness it is: your own (s 38, with leave) or the opponent's (s 43).
Start here — what is a prior inconsistent statement?¶
The definition: a previous representation that is inconsistent with the witness's evidence (EA Dictionary). It can be verbal, written, or inferred from conduct — e.g. a complainant's continued voluntary association with the accused after alleged sexual offending may be a representation by conduct that no offence occurred (R v Selsby; cf R v ERJ on the innocent explanations for delayed complaint / continued association).
How it gets in: a PIS is admissible via s 103 (cross-examination as to credibility) or s 106 (rebutting denials); you cross-examine on it under s 43.
Admitted lies are more than inconsistencies
where a witness admits lying (not merely giving a differing account), it is an error to reduce the admitted lies to inconsistencies "that might be explained away" (Skinner v R [2015] VSCA 26).
The two permissible uses of a PIS (once admitted)¶
| Use | Effect |
|---|---|
| 1 · Credibility / reliability | it shows the witness gave an earlier account inconsistent with their evidence — the jury may use it where it shows the witness is unable or unwilling to recall accurately (Hackett; NRC (No 2); Thompson; Driscoll; Salih). |
| 2 · Truth of the facts (s 60) | the hearsay rule does not apply (s 60), so the earlier statement can prove the truth of what it asserts — subject to the admission carve-out below. If a witness gives evidence that is inconsistent with a statement they previously made to police, examining counsel may cross-examine them on that PIS (pursuant to section 43 of the Act). Because PIS is relevant to the witness's credibility, it is admitted for a non-hearsay purpose. Once admitted, section 60 operates automatically so that PIS becomes substantive evidence of the truth of the facts it asserts (Adam v The Queen (2001) 183 ALR 625) |
| Also — consistency | with both consistent and inconsistent parts, the jury assesses overall consistency; a PIS may even enhance credit via a generally consistent narrative (Kehagias; Titijewski; PFG). |
s 60(3) — not for admissions
s 60 operates only on the witness's own representations, not on what someone said to the witness. If W's PIS reports that the accused admitted something to W, the prosecution cannot use s 60 to prove the truth of that admission (s 60(3); Lee v The Queen [1998] HCA 60) — seek a s 136 limited-use direction.
A witness who makes a PIS is not necessarily lying: dishonest witnesses are more likely to introduce inconsistencies, but truthful witnesses make mistakes about detail (R v Salih (2005) 160 A Crim R 310).
The decision sequence¶
GATE 1 Whose witness is it? (the route to adduce)
Are you cross-examining your own witness, or the opponent's? → Your own witness — s 38: with leave, cross-examine your own witness as unfavourable (s 38(1)©); limited to credibility (s 38(3)). On leave the court weighs whether notice was given at the earliest time and the extent of questioning by others (s 38(6)), plus the s 192 EA leave factors (unfairness, importance, nature of the proceeding). → The opponent's witness — s 43: cross-examine under s 43 — no need to show particulars or the document first → Gate 2.
GATE 2 · s 43 The 'put it to the witness' rule
Has the witness admitted making the statement? s 43(1): a witness may be cross-examined about an alleged PIS whether or not complete particulars have been given, or a document containing it has been shown to the witness. → Witness admits it: the inconsistency is before the court; no further proof is needed; nonetheless, the cross-examining party may still choose to tender the document into evidence. → Witness does not admit it: if the witness is asked about the PIS and does not admit to making it, the cross-examiner is prohibited from simply calling a third party—such as the police officer who recorded the statement—to prove the statement exists, unless they fulfil section 43(2), i.e. before adducing evidence of the statement from another source, the cross-examiner must first confront the witness while they are in the box by: Informing the witness of the circumstances: Counsel must provide enough detail about when, where, and to whom the statement was made to enable the witness to identify the occasion. Drawing attention to the inconsistency: Counsel must specifically point out the exact portion of the statement that contradicts the witness's in-court evidence. You may re-open your case to adduce it (s 43(3)). This ensures that even if the defence has closed its case, or the prosecution needs to adduce rebuttal evidence, there is a clear statutory mechanism to place PIS before the jury.
GATE 3 Getting it in — the credibility exceptions
s 103: the credibility rule does not apply to cross-examination evidence that could substantially affect the assessment of the witness's credibility. s 106: the rule does not apply to evidence adduced from another source to rebut a denial about credibility, with leave. Under section 106(1), the credibility rule does not apply to evidence relevant to a witness's credibility that is adduced otherwise than from the witness themselves, provided three strict conditions are met: Puttage: The substance of the credibility evidence must have been put to the witness in cross-examination. You do not need to put every single proposition of the rebuttal evidence, but the substance must be put fairly. Denial: The witness must have denied, or not admitted or agreed to, the substance of the evidence. (Note that a witness remaining mute or giving evasive, non-responsive answers can, depending on the circumstances, satisfy the requirement of not admitting or agreeing). Leave: The court must grant leave to adduce the independent rebuttal evidence. No leave is needed evidence to be adduced is one of the s 106(2) free-list categories: - is biased or has a motive for being untruthful; - has been convicted of an offence; - has made a prior inconsistent statement; - is, or was, unable to be aware of matters to which their evidence relates; or - has knowingly or recklessly made a false representation while under a legal obligation to tell the truth.
GATE 4 · s 45 Where a document is involved
The court may examine the document, direct its use, and admit it even if a party has not tendered it — but it cannot admit a document that is not admissible under Chapter 3. Merely referring a witness to a document in cross-examination does not require the party to tender it.
GATE 5 Jury directions on a PIS
Is a direction needed — and what must it say? Not always required — counsel's arguments may sufficiently identify the principles (Hartwick; R v BR). If a direction is given, the better approach is to identify the two permissible uses (Pavitt; Abdallah; Raimondi). Where the inconsistencies are an important part of the defence case, they must ordinarily be put as part of the obligation to present the accused's case (Mark & Elmazovski; Salih; Stewart; cf PFG; RH). → Jury Directions Act: under s 14 a judge must give a direction requested by a party unless there are good reasons not to; consider: - s 32 unreliability warning (a PIS is a form of hearsay); and - for sexual offences only (s 54A), a s 54D "differences in a complainant's account" direction. When the threshold is met, section 54D(2) mandates that the trial judge must inform the jury of the following matters: Jury's Role: It is up to the jury to decide whether the offence charged, or any alternative offence, was actually committed. Relevance: Differences in the complainant’s account may be relevant to the jury’s assessment of the complainant’s credibility and reliability. Human Experience: Experience shows that people may not remember all the details of a sexual offence or describe it the same way each time. Furthermore, trauma may affect different people differently, including how they recall events. Commonality: It is common for there to be differences in accounts of a sexual offence, such as describing it differently at different times, to different people, or in different contexts. Truthfulness: Both truthful and untruthful accounts of a sexual offence may contain differences. Ultimate Assessment: It is ultimately up to the jury to decide whether any differences in the account are important to assessing the complainant's credibility and reliability, and whether they believe all, some, or none of the complainant's evidence. → Getting the words right: do not imply the jury must choose between the two statements or apply a standard of proof to whether the statement was made; where a prosecution witness makes a PIS, direct the jury to consider whether the inconsistencies raise a reasonable doubt (Raimondi). If the PIS is part of a larger statement and the jury asks about the rest, direct them not to speculate (Hackett).
Worked examples & the Barton limit¶
Compelling & cross-examining (s 38 + s 60): in McRae, the Crown could compel two already-sentenced co-offenders and, if their evidence proved unfavourable, obtain s 38 leave to cross-examine on their initial statements implicating the accused — and rely on those statements for their truth via s 60. In R v Bourbaud [2011] VSC 103, the Crown cross-examined unfavourable witnesses on inconsistencies between their plea summaries and later accounts.
Two accounts — the jury decides: where a PIS is adduced, the jury has two inconsistent accounts from one witness and decides which, if any, to believe (R v Thynne; Sainsbury v Allsop).
★ Featured — Barton (a pseudonym) v The King [2025] VSCA 74
a prosecution opening is not evidence — and it is not the witness's statement. Where a complainant simply did not give evidence on some charges the opening had flagged (producing directed acquittals on those charges), that failure is not a prior inconsistent statement and cannot be used to draw adverse inferences about the complainant's credibility/reliability on the other charges — to do so would be to speculate about why the opening was drafted as it was. The trial judge was right to refuse; the Court of Appeal agreed.
Adducing a PIS — which route?¶
| Your own witness — s 38 | The opponent's witness — s 43 | |
|---|---|---|
| Mechanism | cross-examine as unfavourable, with leave | cross-examine as of right |
| Leave? | Yes — s 38(6) + s 192 factors | No (but s 43(2) governs proving it aliunde) |
| Limited to? | credibility (s 38(3)) | credibility (s 103) → then truth (s 60) |
Provisions at a glance¶
| s | Effect |
|---|---|
| EA s 38 | Cross-examine your own (unfavourable) witness on a PIS, with leave — limited to credibility. |
| EA s 43 | Cross-examine the opponent's witness on a PIS; proving it aliunde needs the s 43(2) steps; may re-open (s 43(3)). |
| EA s 45 | Documents — court may examine / direct / admit; no obligation to tender a document merely put to a witness. |
| EA s 60 | Hearsay rule off where relevant for another purpose → a PIS can prove the truth — except admissions (s 60(3); Lee). |
| EA ss 103 / 106 | Credibility gateways — substantial effect (103); rebutting denials, no leave for a PIS (106(2)). |
| EA s 136 | Limited-use direction (e.g. confine a PIS to credibility where s 60 truth-use is barred). |
| JDA ss 14 / 32 / 54D | Requested direction (14); unreliability warning for hearsay (32); differences in a complainant's account — sexual offences only (54D; s 54A). |
Case law at a glance¶
| Case | The point it stands for |
|---|---|
| R v Selsby [2004] NSWCCA 381 · R v KNP (2006) 67 NSWLR 227 | A PIS may be verbal, written or inferred from conduct (e.g. continued association). |
| R v ERJ (2010) 200 A Crim R 270 | Caution — delayed complaint / continued association with an offender may have innocent explanations. |
| Skinner v R [2015] VSCA 26 | Admitted lies are more than prior inconsistencies; reducing them to explainable inconsistencies is an error. |
| Lee v The Queen [1998] HCA 60 | s 60(3) — s 60 works on the witness's own representations, not an accused's admission reported by the witness. |
| McRae · R v Bourbaud [2011] VSC 103 | The Crown may compel and, on s 38 leave, cross-examine unfavourable witnesses on earlier statements and rely on them via s 60. |
| R v Thynne [1977] VR 98 · Sainsbury v Allsop (1899) 24 VLR 725 | Two inconsistent accounts → the jury decides which, if any, to believe. |
| Hackett [2006] VSCA 138 · NRC (No 2) [2001] VSCA 210 · Thompson (2008) 21 VR 135 · Driscoll (1977) 137 CLR 517 | A PIS may show the witness is unable/unwilling to recall accurately — relevant to credibility/reliability. |
| R v Salih (2005) 160 A Crim R 310 | A witness who makes a PIS is not necessarily lying — truthful witnesses err on detail. |
| Kehagias [1985] VR 107 · Titijewski [1970] VR 371 · PFG [2006] VSCA 130 | A statement with consistent and inconsistent parts may enhance credit via a generally consistent narrative. |
| Hartwick (2005) 14 VR 125 · R v BR [2005] VSCA 145 | A PIS direction is not always necessary — counsel's arguments may suffice. |
| Pavitt (2007) 169 A Crim R 452 · Abdallah [1999] NSWCCA 380 · Raimondi [2013] VSCA 194 | If a direction is given, identify the two uses; for a prosecution witness's PIS, direct on reasonable doubt; do not force a choice or a standard of proof. |
| Mark & Elmazovski [2006] VSCA 251 · Stewart (2001) 52 NSWLR 301 · RH [2004] VSCA 231 | Inconsistencies central to the defence must ordinarily be put to the jury as part of the accused's case. |
| Barton (a pseudonym) v The King [2025] VSCA 74 | A prosecution opening is not evidence; a complainant not giving opening-flagged evidence is not a PIS and cannot attack their credibility. |
Key authority watch¶
• Newest: Barton (a pseudonym) v The King [2025] VSCA 74 — the prosecution opening is not evidence; the opening-vs-evidence gap is not a usable inconsistency.
• The anchors: Lee (the s 60(3) admission limit), Skinner (admitted lies), Raimondi (the two uses; the reasonable-doubt framing), Salih (a PIS is not proof of lying).
• The routes: s 38 (your own unfavourable witness, with leave) vs s 43 (the opponent's) — both feed s 60 for truth, subject to s 60(3).