#8545 - Credibility Notes - Litigation 2

Credibility only notes

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

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

EXCEPTIONS

CE adduced in cross-examination: s 103
CE adduced in cross-examination against D: s 104 in addition to s 103
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)
CE adduced to re-establish credibility in re-examination: s 108
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))
CE adduced about a person who wasn’t a W who has made a previous rep admitted in the proceedings: s 108A
CE adduced about the D, who isn’t a W, but made a previous rep that’s been admitted: s 108B
CE adduced from an expert about credibility of W: s 108C
Character evidence? Ss 110, 111.

	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).

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).

Checklist.	Is the evidence credibility evidence? Do you want to cross-examine witness on credibility? – s 103 XE Witness on Credibility> On a PIS?: adduce it with s 43 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 recklessly made a false rep 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 Checklist for compliance with s 103: Req 1#: “Adduced in cross-examination” (through questioning, and tendering of documents, audio tapes etc: McLean) Req 2#: Could substantially affect assessment of credibility: s 103
2(i) ‘Adduced in XE”	(i) “Adduced in cross-examination” Questioning relating to documents and also the tender of those documents: McLean EG – audio tapes and transcript of interviews recording the W’s PIS that had been tendered during a s 38 XE of W, were admissible under s 103 (and then for their hearsay use, by way of s 60)
2(ii) Could substan-tially affect assessment of credibility: having regard to context: Lodhi but not reliability; Shamouil	(ii) “Could substantially affect” One assesses how the evidence ‘affects the assessment of the credibility of the witness by taking it at its highest (R v Beattie) assume that the W will respond affirmatively to the question and give the answer sought by the XE: R v RPS; R v Beattie; SRA NSW v Brown; Lumsden; McGoldrick “Could” means capable of substantially affecting – not that likely to do so: Shamouil Assess the effect in the context of the rest of the evidence: R v Burn ; Lodhi What ‘substantial probative value’ means: RPS ‘substantial’ is a word should be given its full import: R v Lodhi ‘real persuasive bearing’ on the [‘credibility’) of the witness: R v Fowler Be of ‘considerable importance’, ‘concerning the essentials’ ‘important in material terms’: W v R Important categories to consider: Bias and a motive to lie (R v Uhrig) where the alleged motive is based on sufficient evidentiary foundation that such a motive actually exists (R v WJT) - motive to lie will almost inevitably pass s 103 test. If alleged motive is denied by W, other evidence may be led to rebut that denial in accordance with s 106. Mere pro forma tactical line in XE suggesting a motive to lie will not have ’substantial probative value’. Inherent implausibility of a witness’ account: Leung v R. W’s incapacity to remember/observe matters about which testified: HG v R; Fowler PIS, equivocal or evasive answers and false representations made on earlier occasions. Previous convictions and misconduct – criminality per se without a connection to issue of credibility will not have substantial probative value: Fowler – and it must be seen in the context of the trial: Lodhi Attempting to influence witnesses and jurors has substantial probative value where convicted, but not just committed to trial: Fowler Larceny, assault and murder possibly has substantive probative value – even though held to be typically irrelevant to credibility in Fowler, however held to be capable of having subst.prob.value in Burns . Drug offences – possibly: Davidson; cf Black Uhlans where possession of an implement for smoking marijuana had no weight in relation to credibility. Culpable driving no weight on credibility: Black Uhlans Corrupt conduct that has not resulted in criminal charges may be subject of XE: R v McGoldrick – D allege that police planted drugs on him, should have been allowed to XE one police officer in relation to allegations made at Wood Royal Commission that he took a bribe – cf R v Beattie – where accused defended drug + firearm charges, correct to reject XE of officer on accusations made at Wood Royal Commission on other improper conduct. Theft relevant: Beattie Forging signature irrelevant for...

Checklist.

Is the evidence credibility evidence?
Do you want to cross-examine witness on credibility? – s 103
XE Witness on Credibility> On a PIS?: adduce it with s 43
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 recklessly made a false rep 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

Checklist for compliance with s 103:

Req 1#: “Adduced in cross-examination” (through questioning, and tendering of documents, audio tapes etc: McLean)
Req 2#: Could substantially affect assessment of credibility: s 103

2(i) ‘Adduced in XE”

(i) “Adduced in cross-examination”

Questioning relating to documents and also the tender of those documents: McLean
EG – audio tapes and transcript of interviews recording the W’s PIS that had been tendered during a s 38 XE of W, were admissible under s 103 (and then for their hearsay use, by way of s 60)

2(ii) Could substan-tially affect assessment of credibility: having regard to context: Lodhi but not reliability; Shamouil

(ii) “Could substantially affect”

One assesses how the evidence ‘affects the assessment of the credibility of the witness by taking it at its highest (R v Beattie) assume that the W will respond affirmatively to the question and give the answer sought by the XE: R v RPS; R v Beattie; SRA NSW v Brown; Lumsden; McGoldrick
“Could” means capable of substantially affecting – not that likely to do so: Shamouil
Assess the effect in the context of the rest of the evidence: R v Burn ; Lodhi
What ‘substantial probative value’ means: RPS
- ‘substantial’ is a word should be given its full import: R v Lodhi
- ‘real persuasive bearing’ on the [‘credibility’) of the witness: R v Fowler
- Be of ‘considerable importance’, ‘concerning the essentials’ ‘important in material terms’: W v R

Important categories to consider:

Bias and a motive to lie (R v Uhrig) where the alleged motive is based on sufficient evidentiary foundation that such a motive actually exists (R v WJT) - motive to lie will almost inevitably pass s 103 test. If alleged motive is denied by W, other evidence may be led to rebut that denial in accordance with s 106. Mere pro forma tactical line in XE suggesting a motive to lie will not have ’substantial probative value’.
Inherent implausibility of a witness’ account: Leung v R.
W’s incapacity to remember/observe matters about which testified: HG v R; Fowler
PIS, equivocal or evasive answers and false representations made on earlier occasions.
Previous convictions and misconduct – criminality per se without a connection to issue of credibility will not have substantial probative value: Fowler – and it must be seen in the context of the trial: Lodhi
- Attempting to influence witnesses and jurors has substantial probative value where convicted, but not just committed to trial: Fowler
- Larceny, assault and murder possibly has substantive probative value – even though held to be typically irrelevant to credibility in Fowler, however held to be capable of having subst.prob.value in Burns .
- Drug offences – possibly: Davidson; cf Black Uhlans where possession of an implement for smoking marijuana had no weight in relation to credibility.
- Culpable driving no weight on credibility: Black Uhlans
- Corrupt conduct that has not resulted in criminal charges may be subject of XE: R v McGoldrick – D allege that police planted drugs on him, should have been allowed to XE one police officer in relation to allegations made at Wood Royal Commission that he took a bribe – cf R v Beattie – where accused defended drug + firearm charges, correct to reject XE of officer on accusations made at Wood Royal Commission on other improper conduct.
- Theft relevant: Beattie
- Forging signature irrelevant for...

#8545 - Credibility Notes - Litigation 2 - Evidence Law

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