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Law Notes Litigation 2 - Evidence Law Notes

Credibility Notes

Updated Credibility Notes Notes

Litigation 2 - Evidence Law Notes

Litigation 2 - Evidence Law

Approximately 259 pages

These are comprehensive yet succinct notes. They set out the relevant legal principles, and material facts from a range of cases in order to demonstrate how those legal principles have been applied.

At the beginning of each document on each topic, there is a table of contents (hyperlinked so you can navigate easily through the document), and also an 'exam checklist', which you can use during revisions or exams to remind yourself of the key issues you have to address. I also use tables where p...

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Credibility only notes

Table of Contents

A. THE CREDIBILITY RULE 2

1. What is the evidence? Is it excluded by s 102? 2

B. EXCEPTIONS 4

1. Credibility Evidence of a W adduced in cross-examination: s 103 4

2. CE adduced in cross-examination against D: ss 103 and 104 6

3. CE adduced at any time otherwise than from W to rebut a denial in XE of that W: s 106 (exception to the finality principle) 8

Bias or motive for being untruthful exception: s 106(2)(a): Abebe: Nicholls: Marsden (No 1) and Marsden (no 2) 9

Convicted of an offence? S 106(2)(b) 9

Prior inconsistent statement: s 106(2)(c): Copmanhurst; Aslett 10

S 106(2)(d) Is or was unable to be aware of matters to which W’s evidence relates: Souleyman; Farrell 11

S 106(2)(e) Perjury – W knowingly/recklessly made false representation while under legal obligation to tell the truth. 11

4. CE adduced to re-establish credibility in re-examination: s 108 12

5. CE adduced to re-establish credibility with a PCS of W: s 108(3) 12

6. CE adduced about non-W who has made a previous rep admitted: s 108A 14

7. CE adduced about the D, who isn’t a W, but made a previous rep admitted: s 108B 14

8. CE adduced from an expert about credibility of W: s 108C 15

9. Character evidence? Ss 110, 111. See notes on character. 15

Procedure for putting a PIS of a W to a witness: s 43 16

Note on Procedure for putting another person’s representations to a witness: s 44 16

C. Notes on credibility arranged by time in the trial. 18

Examination in Chief? 18

Can adduce evidence of a PCS during XIC if s 108(3) is satisfied and leave granted (s 192(2)). 18

Cross-Examination of a Witness: how to raise credibility? 18

Can XE W on credibility if evidence could substantially affect the assessment of the credibility of the witness? S 103 18

Can XE W who is a D if comply with ss 103 and 104? 18

Can XE a W on a PIS? In compliance with s 43 19

Re-Examination of a W: how to raise credibility? 19

Credibility rule doesn’t apply to evidence adduced in REX (within confines of s 39 responding to XE issues): s 108(1) 19

Credibility rule doesn’t apply to evidence of a PCS leading in response to a PIS: s 108(3)(a) 19

Outside of XE of a W? 19

Credibility rule doesn’t apply to evidence adduced otherwise than from a W if in XE the W was put the substance of the arguments and denied them, and court gives leave to adduce: s 106 19

Note circumstances where leave not required: bias, offence, PIS (XE under s 43), unable to be aware of what gave evidence on, and perjury: s 106(2)(a)-(e). 19

Appendix for Credibility 20

Docs 20

Credibility evidence ss 101A-108C, and 110 21


THE CREDIBILITY RULE

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

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.

A. THE CREDIBILITY RULE

What is the evidence? Is it excluded by s 102?

Credibility evidence is excluded by s 102:

  • Credibility evidence definition: s 101A: 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: s 101A(b)(ii)

  • Def of 'credibility of a witness': the “credibility of any part or all of the evidence of the witness and includes the witness’ ability to observe or remember facts and events about which the witness has given is giving or is to give evidence”: EA Dictionary

  • Note: credibility is much narrower a concept than character. (Generally character is irrelevant to matters arising in the trial)

The relevance of credibility evidence

  • Credibility evidence is relevant (s 56(2)(a); Goldsmith v Sandilands), as if accepted, it could rationally affect indirectly the assessment of the probability of the existence of a fact in issue in the proceedings (as it bears upon the weight to be given to that W’s evidence). Thus it is relevant (s 55) and admissible (s 56) unless otherwise excluded.

Distinctions between credibility and evidence relevant to facts in issue:

  • Two big cases: Piddington; Goldsmith v Sandilands

  • Note have to distinguish between facts relevant to: (a) fact in issue (b) credibility (c) both (A) and (b)) or (d) neither (a) nor (b).

B. EXCEPTIONS

Credibility Evidence of a W adduced in cross-examination: s 103

Checklist.

  1. Is the evidence credibility evidence?

  2. Do you want to cross-examine witness on credibility? – s 103

  3. XE Witness on Credibility> On a PIS?: adduce it with s 43

  4. Is the W a D then go consider the next exception, s 104.
2) to adduce CE in XE of W: s 103

Test: S 103 allows credibility evidence to be adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness: s 103(1)

  • When the court considers s 103(1), mandatory factors to consider (a) shows W lied and (b) when this was: s 103(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...

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