How Inconsistencies in Complainant Evidence Are Weighed

The Significance of Inconsistencies in Criminal Trials

Inconsistencies in complainant evidence are common in criminal proceedings. A complainant's account at trial rarely replicates exactly what they told police, wrote in a statement, or said in a 000 call. The question for courts is not whether inconsistencies exist, but whether they undermine the reliability or credibility of the evidence.

NSW courts apply a qualitative assessment: inconsistencies on central mattersare treated differently from inconsistencies on peripheral details. This distinction is critical to both prosecution and defence case theory.

Central Versus Peripheral Inconsistencies

Central Inconsistencies

A central inconsistency relates to an element of the offence or a fact directly relevant to liability. Examples include:

• Whether physical contact occurred
• The sequence of events in an alleged assault
• Whether consent was communicated in a sexual offence matter
• The words used in an alleged threat
• Whether the defendant was present at the scene

Central inconsistencies are accorded significant weight. A complainant who provides materially different accounts of a central fact—without satisfactory explanation—may be found unreliable on that issue, even if otherwise credible.

Peripheral Inconsistencies

Peripheral inconsistencies concern details that do not bear on the elements of the offence. Examples include:

• The precise time of an incident (unless time is an element)
• What clothing the defendant was wearing
• The exact words of conversation before or after the relevant conduct
• Minor variations in the description of a location

Courts generally expect some variation in peripheral details. Human memory is reconstructive, and witnesses often provide slightly different accounts across multiple retellings. Peripheral inconsistencies, standing alone, rarely undermine credibility.

Evidence Act Provisions on Prior Inconsistent Statements

Section 43: Prior Inconsistent Statements by Witnesses

Section 43 of the Evidence Act 1995 (NSW) permits cross-examination about prior inconsistent statements without first putting the statement to the witness, unless the court directs otherwise. The section provides:

"A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not the statement is in writing."

Section 106: Credibility Evidence About Witnesses

Section 106 permits evidence to be adduced to prove that a witness has made a prior inconsistent statement, if the witness denies making it or does not admit it. This is an exception to the credibility rule in section 102.

Section 108: Rebutting Denials

Where a witness denies or does not admit making a prior inconsistent statement, evidence may be called to prove the statement was made. This typically involves tendering the written statement or calling another witness.

How Courts Assess Inconsistencies in Practice

From CORE Defence Lawyers' experience in NSW courts, magistrates and judges typically apply the following analytical approach:

Step 1: Identify the Inconsistency

What exactly differs between the current account and prior account? Courts distinguish between direct contradictions (the complainant said X, now says not-X) and variations (the complainant said X, now says X with additional detail Y).

Step 2: Assess Centrality

Does the inconsistency relate to an element of the offence or a fact directly relevant to liability? If so, it is treated as significant.

Step 3: Consider Explanation

Has the complainant provided a satisfactory explanation for the inconsistency? Explanations may include memory refresh, trauma effects, or the passage of time. Courts assess whether explanations are plausible.

Step 4: Evaluate Cumulative Effect

Multiple peripheral inconsistencies may cumulatively undermine credibility, even if each individually would be insufficient. Courts consider the overall pattern of the evidence.

Defence Approach to Complainant Inconsistencies

CORE Defence Lawyers applies the Credibility Assessment Matrix to systematically identify and categorise inconsistencies. Effective defence practice requires:

• Comprehensive disclosure review: Obtaining all versions of the complainant's account—police statements, ERISP transcripts, 000 calls, CANs, APVO applications, text messages to third parties
• Chronological mapping: Creating a timeline of what the complainant said and when, identifying evolution in the account
• Categorisation: Distinguishing central from peripheral inconsistencies to focus cross-examination
• Cross-examination strategy: Using inconsistencies to demonstrate unreliability without aggressive confrontation that may generate sympathy

Common Defence Submissions on Inconsistencies

In closing submissions, CORE Defence Lawyers typically addresses inconsistencies through the following framework:

1. Identify each material inconsistency with specific reference to the evidence
2. Explain why the inconsistency concerns a central rather than peripheral matter
3. Note the absence of satisfactory explanation, if applicable
4. Submit on the cumulative effect of multiple inconsistencies
5. Apply the standard of proof—where inconsistencies generate reasonable doubt, the prosecution case has not been proved