1.

Rebutting an Allegation of Recent Fabrication as an Exception to Previous

Consistent Statement (PCS)

In legal contexts, the concept of Previous Consistent Statements (PCS) refers to

statements made by a witness that are consistent with their testimony in court and are
used to support the credibility of that testimony. However, there are exceptions to
PCS, one of which is recent fabrication. Recent fabrication occurs when it is alleged
that a witness has fabricated their statement shortly before giving evidence in court.

Case Law Examples

One notable case that illustrates the rebuttal of an allegation of recent fabrication as an
exception to PCS is R v Christie [1914] 3 KB 6071. In this case, the defendant was
accused of theft, and a witness provided a statement consistent with their testimony in
court. The defense argued that the witness had recently fabricated their statement to
support the prosecution’s case. The court rejected this argument, stating that there was
no evidence to suggest recent fabrication and allowed the PCS as evidence.

Another relevant case is R v Lucas [1981] 2 All ER 10072, where the issue of recent
fabrication was raised regarding a witness’s statement. The court considered the
circumstances under which the statement was made and concluded that there was no
indication of recent fabrication. As a result, the PCS was admitted as evidence to
support the witness’s credibility.

2 Dock identification

Identification in court is invariably undertaken by asking the witness to point out the
accused in the dock. This is done in order to show that a witness who identifies an
accused at trial has also identified the accused on a previous occasion. Dock
identification by itself has very little probative value and serves only to confirm
identification.3 According to R v Rasool,4 the evidence of a previous identification has
probative value and should be regarded as relevant for the purpose of showing from

1
R v Christie [1914] 3 KB 607
2
R v Lucas [1981] 2 All ER 1007
3
R v M 1959 (1) SA 434 (A), the identification goes only to consistency of identification; it
does not serve to prove the accuracy of the description.
4
1932 NPD 112 at 118.
the very start that the witness who is identifying the accused in the dock is not
identifying the said accused for the first time, but has identified the accused on some
previous occasion in circumstances that gives real weight to the identification. Prior
identification by a witness carries more weight. However, when the physical
identification is supported or accompanied by identifying words, these identifying
words are admissible.5
3 Complaints in sexual cases where there is a victim

In terms of the common law, in cases of a sexual nature, evidence of a voluntary

complaint made by the victim may be admissible as a previous consistent statement
when the complaint is made within a reasonable time after the commission of the
alleged sexual offence. This common law rule has its origin in the medieval principle
that it was essential for a female rape victim to raise the ‘hue and cry’ (i.e. to raise a
voluble and credible outcry) as soon as possible in order to succeed on a rape charge. 6
In terms of the common law where a victim does not make a complaint within a
reasonable time the court may make an adverse inference in respect to the credibility
of the complainant.
The common law rule has been criticized because it does not possess a rational basis,
is sometimes potentially prejudicial to both the victim and the accused, and silence on
the part of a victim is often a legitimate psychological response to the post-traumatic
stress caused by the violent sexual nature of the crime. In particular the common law
requirement that the victim must make a complaint within the first reasonable
opportunity is unrealistic because it does not take into account the psychological
damage caused to a victim by this type of crime.
In terms of the common law a repeated statement of “I have been raped or sexually
molested” will be admissible where the following requirements have been met:

(i) A voluntary complaint:

To be admissible the complaint must have been made by the victim voluntarily and
not as a result of leading, suggestive or intimidating questions. 7 Any threat of violence
such as “I will hit you unless you tell me what happened” or leading questions such as
“did X touch you on your private parts” or “did X assault you” will render the answer
5
Zefferrt and Paizes at 456.
6
Zeffertt and Paizes at 447.
7
S v T 1963 (1) SA 484 (A); R v C 1955 (4) SA 40 (N) at 40g-h.
inadmissible. But the answer to a question “why are you crying’’ is voluntary and
admissible.8

(ii) The victim must testify:

If the victim does not testify the fact that a complaint was made and the contents of
the complaint will be inadmissible. The principal reason for this is that in order to
show consistency the complainant must appear at trial and repeat the complaint.
Furthermore, the complaint would simply amount to a hearsay statement if the maker
of the complaint, namely the victim, is not called to the witness box.9

(iii) The first reasonable opportunity:

The meaning of what amounts to a first reasonable opportunity largely depends on the
circumstances of each individual case. In essence it should mean; “the complaint must
be made at the earliest opportunity which, under all the circumstances, could
reasonably be expected, and also it must be made to the first person to whom the
complainant could reasonably be expected to make it”. 10 The interpretation of a first
reasonable opportunity is at the court’s discretion and will depend on the following
factors; (a) the presence or absence of a person to whom the victim could reasonably
be expected to make the first complaint to; and (b) whether or not the victim was old
enough at the time of the sexual act to understand the immoral or illegal nature of the
act; and, (c) whether the complainant as a result of a certain lapse of time could
possibly be making a false complaint.11
The above approach is illustrated by the judgment of Ebrahim JA in S v S,12 The
accused, a school teacher, was charged with the rape of an 11 year old girl at school
whilst in his care. After the rape the girl, the complainant, did not immediately report
the act to the school because she wanted to tell her mother first (i.e. factor (a)). This
was held by the judge to be a natural reaction of a young girl who had been through a
traumatic experience. When the girl arrived home she merely told her mother that the

8
R v Osborne [1905] 1 KB 551 at 556.
9
S v R 1965 (2) SA 463 (W), the complainant, an alcoholic, alleged that she had been raped
in an ambulance by an assistant who claimed consent. At the hospital she repeatedly alleged
rape and was overheard by a nurse. At trial the complainant, suffering from alcoholic
amnesia, could not remember her repeated statements. The court admitted her statement
and condition in order to show her state of mind at the time of the rape.
10
S v Banana 2000 (3) SA 885 (ZSC) at 895F.
11
S v V 1961 (4) SA 201 (O).
12
1995 (1) SACR 50 (ZS) at 56d-h.
teacher had touched her private parts. The judge held this erratic behaviour to be
natural for a sexually innocent 11 year old girl. At the time the girl had formed the
intention to tell her mother about her ordeal she had been bleeding from her vagina
but when she reached home the bleeding had stopped. She was also unaware that what
the accused had done was unlawful (i.e. factor (b). In addition the complainant had a
history for misbehaviour and was frequently detained at school as punishment, and in
her innocence she did not want to trouble her mother with an explanation of what she
assumed to be merely another form of punishment (i.e. factor (c)).

In S v Cornick,13 the complainant who was 14 years old at the time of the rape had
waited over 19 years before making a complaint. She had psychologically buried the
traumatic memory of the rape for over two decades. A chance meeting with one of her
rapists at the home of his sister had revived her buried memory and she laid a charge
of rape against three accused. Lewis JA argued that there were plausible explanations
for her lengthy silence. She had been brought up by elderly and conservative
grandparents who had never discussed matters of an intimate nature with her. She had
only a distant relationship with her mother who had also never discussed sex or
physiology with her, and she had never had a boyfriend (factor (a)). In these
circumstances she did not realise what was happening to her when the three accused
took turns in raping her despite her protests. She knew she was being hurt but did not
appreciate that she was being raped (factor (b)). Finally the judge argued it was not
improbable that a young woman who had buried the memory of the traumatic event
for many years would not appreciate, until her mid-twenties, the full extent of what
had happened to her when the chance meeting with one of the accused triggered the
memory (factor (c)).

(iv) A victim of a sexual offence:

The offence must be of a sexual nature and the complainant must have been the
victim of a sexual crime. Where the victim is an adult the sexual act must have
consisted of a degree of violence or at a minimum some degree of physical contact by
the perpetrator on the victim.14 The definition of victim includes children and the

13
2007 2 SACR 115 (SCA) at 32.
14
R v Burgess 1927 TPD 14, the common law rule narrowly applies to either female or male
rape, indecent assault and similar offences.
mentally disabled who may voluntarily participate in the sexual act but are incapable
in law of giving consent.

(v) Limited evidential value:

In terms of the common law the evidentiary value of the complaint is usually limited
to proving consistency on the part of the victim/ complainant, and it cannot be used to
establish a lack of consent, or for the purpose of corroboration. 15 The evidential value
of a previous consistent statement may be summarised as follows, “the fact that a
witness telling a particular story at trial has told exactly the same story to the police
soon after the alleged offence cannot supply corroboration. At best it simply
strengthens the evidence or rebuts any suggestion of subsequent corroboration.
Repetition of a story does not corroborate it. Confirmatory evidence of the witness’s
story can only come from an independent source”. However there is one exception;
“the general proposition does not apply in one carefully circumscribed set of
circumstances, where self-corroboration is possible – by means of the victim’s
distressed condition after the alleged incident”.16
In S v S,17 the extremely shocked condition of the complainant when she reported the
rape was considered by the court to be strong corroboration of her testimony that she
had been raped. Two qualifications must be placed on this type of corroboration; (a)
the distressed condition must be carefully considered to ensure that it is not being
faked; and, (b) if it is genuine then the court must ensure that it is not attributable to
something other than the alleged incident.18

15
S v Hammond 2004 (1) SACR 303 (SCA); S v Gentle 2005 (1) SACR 420 (SCA).
16
Ashworth “Corroboration and Self-corroboration” (1978) Justice of the Peace 266 at 267.
17
1990 (1) SACR 5 (A) at 11c.
18
S v Hammond 2004 (1) SACR 303 (SCA) para 21-23.