#8538 - Credibility Checklist - Litigation 2 - Evidence Law

Credibility notes

THE CREDIBILITY RULE

1. Issue 1: Does the credibility rule apply to exclude it?

• Credibility rule excludes credibility evidence unless an exception applies: s 102

  1. Credibility evidence is:

     1. Relevant only because it affects the assessment of the credibility of a witness: s 101A(a); or

     2. Relevant for a credibility purpose and another purpose for which it is not admissible: s 101A(b).

EXCEPTIONS

1. CE adduced in cross-examination: s 103

2. CE adduced in cross-examination against D: s 104 in addition to s 103

3. CE adduced at any time otherwise than from W to rebut a denial in cross-examination of W: s 106 (exception to the finality principle)

4. CE adduced to re-establish credibility in re-examination: s 108

5. CE adduced to re-establish credibility with a PCS of W: s 108(3)

   1. in examination in chief (s 108(3)(b)) or

   2. in re-examination (108(3)(a))

6. CE adduced about a person who wasn’t a W who has made a previous rep admitted in the proceedings: s 108A

7. CE adduced about the D, who isn’t a W, but made a previous rep that’s been admitted: s 108B

8. CE adduced from an expert about credibility of W: s 108C

9. Character evidence? Ss 110, 111.

Part 3.7 – Credibility

Division 1 – Credibility evidence

101A Credibility evidence

Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that:

(a) is relevant only because it affects the assessment of the credibility of the witness or person, or

(b) is relevant:

(i) because it affects the assessment of the credibility of the witness or person, and

(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.

1 Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted.

2 Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen(2001) 207 CLR 96.

Division 2 – Credibility of witnesses

102 The credibility rule

Credibility evidence about a witness is not admissible.

1 Specific exceptions to the credibility rule are as follows:

â evidence adduced in cross-examination (sections 103 and 104)

â evidence in rebuttal of denials (section 106)

â evidence to re-establish credibility (section 108)

â evidence of persons with specialised knowledge (section 108C)

â character of accused persons (section 110)

Other provisions of this Act, or of other laws, may operate as further exceptions.

2 Sections 108A and 108B deal with the admission of credibility evidence about a person who has made a previous representation but is not a witness.

103 Exception: cross-examination as to credibility

(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.

(2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to:

(a) 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

(b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

104 Further protections: cross-examination as to credibility

(1) This section applies only to credibility evidence in a criminal proceeding and so applies in addition to section 103.

(2) A defendant must not be cross-examined about a matter that is relevant to the assessment of the defendant's credibility, unless the court gives leave.

(3) Despite subsection (2), leave is not required for cross-examination by the prosecutor about whether the defendant:

(a) is biased or has a motive to be untruthful, or

(b) is, or was, unable to be aware of or recall matters to which his or her evidence relates, or

(c) has made a prior inconsistent statement.

(4) Leave must not be given for cross-examination by the prosecutor under subsection (2) unless evidence adduced by the defendant has been admitted that:

(a) tends to prove that a witness called by the prosecutor has a tendency to be untruthful, and

(b) is relevant solely or mainly to the witness's credibility.

(5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to:

(a) the events in relation to which the defendant is being prosecuted, or

(b) the investigation of the offence for which the defendant is being prosecuted.

(6) Leave is not to be given for cross-examination by another defendant unless:

(a) the evidence that the defendant to be cross-examined has given includes evidence adverse to the defendant seeking leave to cross-examine, and

(b) that evidence has been admitted.

105 Further protections: defendants making unsworn statements

* * * * *

The Commonwealth Act includes a provision that will only apply in proceedings in a federal court sitting in Norfolk Island. It sets out the situations in which where a defendant in a criminal proceeding has made an unsworn statement evidence may be adduced from a person relating solely to the credibility of the defendant.

106 Exception: rebutting denials by other evidence

(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:

(a) in cross-examination of the witness:

(i) the substance of the evidence was put to the witness, and

(ii) the witness denied, or did not admit or agree to, the substance of the evidence, and

(b) the court gives leave to adduce the evidence.

(2) Leave under subsection (1) (b) is not required if the evidence tends to prove that the witness:

(a) is biased or has a motive for being untruthful, or

(b) has been convicted of an offence, including an offence against the law of a foreign country, or

(c) has made a prior inconsistent statement, or

(d) is, or was, unable to be aware of matters to which his or her evidence relates, or

(e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth.

107 (Repealed)

108 Exception: re-establishing credibility

(1) The credibility rule does not apply to evidence adduced in re-examination of a witness.

(2) (Repealed)

(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if:

(a) evidence of a prior inconsistent statement of the witness has been admitted, or

(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion,

and the court gives leave to adduce the evidence of the prior consistent statement.

Division 3 – Credibility of persons who are not witnesses

108A Admissibility of evidence of credibility of person who has made a previous representation

(1) If:

(a) evidence of a previous representation has been admitted in a proceeding, and

(b) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding,

credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of...