#9223 - Character And Credibility - Evidence Law

Character and Credibility

Identify the evidence as character and/or credibility evidence

1. Character evidence – regards whether one has a tendency to act, think or feel in a particular way on continuous occasions. Inherent in the person and distinguished from reputation Melbourne v R

   • Generally, evidence of good character is admissible, and evidence of bad character is only allowed exceptionally

   • Character evidence is often used to impugn credit

2. Credibility evidence – regards a witness’ likelihood to tell the truth

If credibility evidence

1. What is credibility evidence?

   1. 101A Credibility evidence is evidence relevant only to the credibility of the witness or person that

      1. is relevant only because it affects the assessment of the credibility of the witness or person; or (credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witnesses ability to observe/remember facts and events which they are giving evidence about 102)

      2. is relevant

         1. because it affects the assessment of the credibility of the witness or person; and

         2. for some other purpose for which it is not admissible

2. If it is credibility evidence, apply the credibility rule.

   • Section 102 EA: Evidence solely relating to credit, or only admissible to credit, is disallowed

   • Remember, if the evidence goes to issue, the credibility rule doesn’t apply e.g. evidence that a witness was not present at the scene of an accident when he says he was goes to both credit and a fact in issue

   • But clearly excludes evidence of any good character, disposition, and reputation of a witness adduced during examination in chief of that witness or from another witness.

   • Such evidence is excluded as a practical matter to limit collateral issues

   • In the same sense, can’t adduce evidence to ruin someone’s credibility (unless they are a hostile witness)

3. Exception for prior consistent statements 108(3)

   1. At common law, it is generally not permissible to bring evidence of a statement made on another occasion in conformation of witness testimony Corke v Corke v Cork

   2. During re-examination or examination in chief: Under the EA, prior consistent statement will generally breach the credibility rule except if 108(3) evidence of a prior inconsistent statement has been admitted; or it has or will be suggested that witness evidence was fabricated or re-constructed and the court gives leave Nominal Defendant v Clements

4. Exception if the evidence is adduced in cross-examination and leave is given apply s103 and s104

   • 104(2) In a criminal proceedings, an accused must not be cross-examined about a matter that is relevant to their credibility without leave

     • Must apply 192, 135 or 137 (see below)

     • 104(3) Leave is not required if the witness was biased, made a prior inconsistent statement, or was unable to be aware of or recall matters to which the evidence relates

     • 104(4) Leave must not be given unless the defendant has already admitted evidence that solely regarded a prosecution witness’ credibility and tends to prove a prosecution witness is untruthful

       • Doesn’t include evidence of conduct in relation to the events in relation to which the D is being prosecuted 104(5)

       • That is, they have already attacked the credit of a prosecution witness. Their shield is abolished.

     • 104(6) Co-accused: Leave is only given to a defendant to cross-examine a co-accused if the defendant has already admitted evidence adverse to him/herself

1. Exception if the evidence is evidence is adduced in cross-examination and it would substantially affect witness credibility 103(1)

   • 103(1) A party can disregard the credibility rule in cross-examination if the evidence could substantially affect witness credibility Melbourne v R Look at:

     • Whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and

     • The period that has elapsed since the acts or events to which the evidence relates were done or occurred

5. Exception: where questions put in cross-examination as to credit have been denied

   1. Independent evidence may then be adduced, by the cross-examining party, to contradict those denials if it falls within section 106

   2. 106 (1) The credibility rule does not apply to evidence that is relevant to a witness’s credibility and that is adduced otherwise than from the witness if-

      1. In cross-examination of the witness-

         1. The substance of the evidence was put to the witness; and

         2. The witness denied it and

      2. The court gives leave to adduced the evidence

   3. 106(2) Leave is not required if

      1. the witness was biased or has a motive for being untruthful

      2. has been convicted of an offence

      3. made a prior inconsistent statement

      4. was unable to be aware of matters to which the evidence relates or

      5. has knowingly or recklessly lied when being legally obliged to tell the truth

6. If relevant, note the effect of delay

   1. If there is a delay, the court must inform the jury that there may be a good reason for it, and must warn the jury that it is unfair to find the accused guilty or that witness credibility is affected by the delay 61(1)(b) see Crofts v R and CMG v R

   2. In a criminal proceeding where there is a jury. A judge can, if satisfied, inform a jury that the delay has caused a significant forensic disadvantage to the accused, and that this may be considered. This, however, is not a statement on any witness’ credibility s 1658 EA Longman v R

If character evidence

1. Define: This is good/bad character evidence of the accused/witness?

   • Character may be good or bad and may be proved by:

     • Giving evidence (Prior convictions; prior instances of good/bad behaviour)

     • Calling witnesses

     • Cross-examining a witness

   • Is the character evidence relevant to a fact in issue or credit?

     • Rare to relate to a fact in issue e.g. defamation

     • May make their character an issue by saying “I am a good person thus am less likely to commit the offence”

2. If the evidence relates to a defendant in evidence in chief, apply section 110 and 111 EA

   1. Generally the prosecution is not permitted to bring evidence that solely relates to a D’s bad character. Section 110 and 111 EA do provide some exceptions. They only apply to criminal proceedings s 109 EA

   2. Section 110(1) EA: The hearsay/opinion/tendency and credibility rules of evidence do not apply to evidence by a defendant adduced to prove that the D is of good character Melbourne v R

      1. However, 110(2) If evidence is adduced to prove the D is generally of good character, the prosecution can lead any evidence to prove otherwise

      2. 110(3) If evidence is adduced to prove a defendant is of good character in a particular respect, the rules do not apply to evidence of the prosecution to prove he is not of good character in that respect R v Zurita; Braysitch

   3. However, although leave is not required for the prosecution to adduce contradictory character evidence, the evidence may be excluded where its probative force is outweighed by its prejudicial effect 135/137

      • The factors of s135: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might

        • be unfairly prejudicial to aparty; or

        • be misleading or confusing; or

        • cause or result in undue waste of time.

      • The factors of 137: In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

   4. When an accused adduces evidence of another defendant111

      1. (Don’t necessarily have to have brought good character evidence first) The hearsay and tendency rules do not apply to evidence of a defendant's character if—

         1. the evidence is evidence of an opinion about the defendant adduced by another defendant (co-accused) and

         2. the person whose opinion it is has specialised knowledge based on the person's training, study or experience; and

         3. the opinion is wholly or substantially based on that knowledge (e.g. Lowery v R).

3. If the evidence related to a defendant in cross examination, apply section 112 EA

   • 112 EA An accused must not be cross-examined about character unless the court gives leave. In ascertaining leave, the factors of s 192 must be considered Staneoevski v R

     • The factors of s 192

       1. the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

       2. the extent to which to do so would be unfair to apartyor to a witness; and

       3. the importance of the evidence in relation to which the leave, permission or direction is sought; and

       4. the nature of the proceeding; and

       5. the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

4. If the evidence related to a victim of a sexual offence, apply the rule in the Criminal Procedure Act 2009

   1. Generally, evidence of a victim’s bad character is admissible. However, sexual offence victims have special rules. Courts must have regard to the fact that 338

      1. there is a high incidence of sexual violence within society; and

      2. sexual offences are significantly underreported; and

      3. a significant number of sexual offences are committed against women, children and other vulnerable persons including persons with a cognitive impairment; and

      4. offenders are commonly known to their victims; and

      5. sexual offences often occur in circumstances where there is unlikely to be any physical signs of an...