(Last revised June 2012)
[1] (NOW) has testified. S/he also made an earlier statement that is exhibit (number) in this case. In her testimony before you s/he has said that her earlier statement [or parts of it] was/were false.
If 11.10 has been given:
You will recall what I have already said about the prior inconsistent statements of a witness which is that they can only be used for assessing the credibility of that witness’s testimony unless adopted by the witness. In the case of (NOW), however, the situation is different. Both the testimony and the earlier statement are evidence for you to consider. I will now explain in more detail how you can use this evidence.
[2] Both the testimony and the earlier statement are evidence of what happened. It is for you to say how much or little of the witness’s testimony before you and the earlier statement you will believe or rely on in deciding this case. (describe particulars of statement).
[3] I have already given you instructions about how to assess a witness’s testimony. Those instructions apply to (NOW)’s evidence. I will give you additional instructions concerning (NOW).
[4] (NOW) made an earlier statement that is different than his/her testimony in court. You should consider the fact, nature and extent of any differences that you find between what (NOW) said here and what s/he said in the earlier statement.
[5] As I have said, (NOW)’s earlier statements as well as his/her testimony before you are evidence of what happened. You must assess both carefully. You should consider several factors in deciding how much or little of the testimony and the earlier statement you will believe or rely on. Do any of these factors affect their reliability?
(To prevent speculation, refer only to the factors that arise on the evidence.)
[6] Consider the evidence about what occurred before (NOW) made the statement in exhibit (number). Were there other interviews? How many? What was discussed? What happened during them? Was (NOW) coached? Was s/he shown things? Or were suggestions made to help his or her memory or to contradict what s/he had said earlier?
[7] Consider the circumstances of the interview at which the statement was made. Was the statement completely and accurately recorded? Was the statement made under oath or affirmation? Was (NOW) in some other way reminded of the importance of telling the truth? Did (NOW) give the statement in his or her own words or did the questioner put words in (NOW)’s mouth?
[8] Consider (NOW)’s behaviour during the interview, even though you do not have the same opportunity to observe his or her behaviour that you would have had if s/he had made the statement in court. Consider that (NOW) did not make the statement in open court or in (NOA)’s presence. You should also consider that there was no opportunity to test (NOW)’s statement through cross-examination at the time s/he made it.
[9] Consider any reason that (NOW) may have had for not telling the whole truth. Did (NOW) explain why the statement was not the truth?
[10] Consider how much or little a denial of making the statement, or of the truth of all or some of its parts, limits the effectiveness of cross-examination on it and your ability to assess accurately how much or little it helps you decide the case.
(List any other specific factors of relevance in the case.)
[11] Examine the rest of the evidence in the case to see how much or little it supports or contradicts what (NOW) said in the statement, or in his/her evidence at trial.