Though perhaps not quite as dramatic as signing up for the US Army, it’s important that witnesses sign their statements — especially in summary proceedings under Chapter 3 of the Criminal Procedure Act 2009. (Charges that are tried before a jury are subject to committal proceedings with evidence tested on oath, or else statements are admitted under s 139 if they are attested as true and comply with s 112.)
Section 47 of the Act provides:
47. Rules with respect to statements
(1) Subject to subsection (5), a statement referred to in section 41 which the informant intends to tender at the hearing of the charge if the accused does not appear must be—
(a) in the form of an affidavit; or
(b) signed by the person making the statement and contain an acknowledgment signed in the presence of a person referred to in Schedule 3 that the statement is true and correct and is made in the belief that a person making a false statement in the circumstances is liable to the penalties of perjury; or
(c) in a form, and attested to in a manner, prescribed by the rules of court.
There are further details for statements by children and illiterate folks; sub-section (5) is now repealed.
(The attestation speaks for itself, and doesn’t require oral evidence per Evidence Act 2008 s 149.)
One reason for this requirement is if an accused person doesn’t attend court, the prosecution can tender the properly-attested statement rather than call oral evidence to prove the charge — see ss 80 and 83.
The attestation also protects witnesses against allegations of recent invention, but conversely prevents them from later ‘improving’ their evidence (in a pejorative sense) or recanting it.
It’s also a wee bit important if the case delves into the area of unfavourable witnesses.
On a black-and-white reading of the introductory words of s 47(1), you might think the rules apply only if the informant intends to tender a statement if the accused doesn’t front court.
The Criminal Procedure Act legislative guide focuses on the admissibility of a statement in the absence of the accused. But, it goes on to mention a crucial consideration when it refers to the specific offence in s 414, of acknowledging a false statement:
However, it remains crucial for both the prosecution and the accused that statements are accurate and that those who knowingly provide false information in a statement should be guilty of the offence. Therefore, the Act creates a separate offence of acknowledging a false statement (set out in section 414). This provision broadens the ambit of the offence in order to ensure that the offence applies to all situations where a witness knowingly provides false
information (see discussion of section 414).
Self-evidently, we want honest witnesses giving evidence and providing honest statements outlining what that evidence will be.
The explanatory memorandum simply says, “Clause 47 sets out how a statement contained in a full brief must be acknowledged.”
It seems the rules are intended to apply more broadly that just when the informant intends to tender the statement. (Logically, that intention can’t arise until the accused doesn’t turn up at court — which is always long after the statement is made anyway.)
Section 41(1)(d)(iv) makes this clearer, providing that a full brief must contain:
(iv) a list of the persons the prosecution intends to call as witnesses at the hearing, together with a copy of each of the statements made by those persons
See section 47 for requirements for statements.
I’m not sure if the new preliminary brief procedure is confusing police investigators, but there seem to be many more briefs of evidence now with unsigned ‘statements’ than I remember seeing in the past. What’s your experience?