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Credibility Notes

Law Notes > Litigation 2 - Evidence Law Notes

This is an extract of our Credibility Notes document, which we sell as part of our Litigation 2 - Evidence Law Notes collection written by the top tier of University Of New South Wales students.

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Lit 5 Credibility only notes

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Credibility only notes Table of Contents

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THE CREDIBILITY RULE

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

1. CE adduced in crossexamination: s 103

2. CE adduced in crossexamination against D: s 104 in addition to s 103

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

4. CE adduced to reestablish credibility in reexamination: s 108

5. CE adduced to reestablish credibility with a PCS of W: s 108(3) a. in examination in chief (s 108(3)(b)) or b. in reexamination (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

1. 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

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Lit 5 Credibility only notes (A) and (b)) or (d) neither (a) nor (b).

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B. EXCEPTIONS

1. Credibility Evidence of a W adduced in crossexamination: s 103 Checklist. 1) Is the evidence credibility evidence?
2) Do you want to crossexamine 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 Test: S 103 allows credibility evidence to be adduced in crossexamination of a witness if CE in XE of the evidence could substantially affect the assessment of the credibility of the witness: s W: s 103 103(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: (i) Req 1#: "Adduced in crossexamination" (through questioning, and tendering of documents, audio tapes etc: McLean) (ii) Req 2#: Could substantially affect assessment of credibility: s 103 2(i) (i) "Adduced in crossexamination" 'Adduced in * Questioning relating to documents and also the tender of those documents: McLean XE"

* 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 (ii) "Could substantially affect" substan

* One assesses how the evidence 'affects the assessment of the credibility of the witness by tially affect taking it at its highest (R v Beattie) assume that the W will respond affirmatively to the assessment question and give the answer sought by the XE: R v RPS; R v Beattie; SRA NSW v Brown; of Lumsden; McGoldrick credibility:

* "Could" means capable of substantially affecting - not that likely to do so: Shamouil having

* Assess the effect in the context of the rest of the evidence: R v Burn ; Lodhi regard to

* What 'substantial probative value' means: RPS context: o 'substantial' is a word should be given its full import: R v Lodhi Lodhi but o 'real persuasive bearing' on the ['credibility') of the witness: R v Fowler not o Be of 'considerable importance', 'concerning the essentials' 'important in material reliability; terms': W v R Shamouil 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. 4 of 23

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3) S 43

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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 o Attempting to influence witnesses and jurors has substantial probative value where convicted, but not just committed to trial: Fowler o 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 . o Drug offences - possibly: Davidson; cf Black Uhlans where possession of an implement for smoking marijuana had no weight in relation to credibility. o Culpable driving no weight on credibility: Black Uhlans o 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. o Theft relevant: Beattie o Forging signature irrelevant for 16 yo on absentee notes from school: ATM.

Examples: have to consider the context: Lodhi

* Allegedly false statements the W (Accused) had made in a job application, concerning his work experience, had (by a small margin) 'substantial probative value': Lodhi Reasoning: (1) S 103 permitted him to assume that a lie was involved even though there could be an innocent explanation (2) that a potential employer would consider it important that truthful information be provided, (3) esp in the case, as here, of a qualified and registered architect whose professional standards should be beyond reproach and (4) D had put himself as a high religious standard who struggled for moral virtue. All in context of trial where credibility was at issue.

* Substantial effect for XE about prior convictions which concerned dishonesty: R v Burns
- although the jury knew he was in custody and was a drug user, without being told that he had prior convictions they may have thought he was just on remand

* Not satisfied where XE of witness on precise details of prior convictions: R v Galea - where jury knew that he was a drug addict and supported this addict through offences involving dishonesty. s 43 PIS - if a PIS has been adduced under credibility rules. (1) A witness may be crossexamined about a prior inconsistent statement alleged to have been made by the witness whether or not: (a) complete particulars of the statement have been given to the witness, or (b) a document containing a record of the statement has been shown to the witness. (2) If, in crossexamination, a witness does not admit that he or she has made a prior inconsistent statement, the crossexaminer is not to adduce evidence of the statement otherwise than from the witness unless, in the crossexamination, the cross
examiner: (a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement, and (b) drew the witness's attention to so much of the statement as is inconsistent with the witness's evidence. (3) For the purpose of adducing evidence of the statement, a party may reopen the party's

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case.

2. CE adduced in crossexamination against D: ss 103 and 104 Intro

1) For the Crown to XE the D on credibility

Rule: CE is generally excluded (s 102), but can be adduced in XE of a W if the evidence could substantially affect the assessment of the credibility of the W (S 103). If the W is the defendant in a criminal proceeding, then in addition to the s 103 requirements, a D must not be XE about a matter relevant to assessment of D's credibility unless court gives leave: s 104(2).

Checklist: 1) For the Crown to XE D - must get leave under s 104(2); s 192. a. Must be compliance with s 103 (eg in ElAzzi) b. Must get leave under s 104(2). i. Leave not required in s 104(3) circumstances. ii. Leave cannot be given under s 104(2) unless evidence has been admitted by the D that complies with s 104(4) (attacks crown witness credibility). S 104(4) is construed with reference to s 104(5). iii. Consider s 192 factors, and ss 135, 137. 2) For a coaccused to XE D on credibility - must comply with s 103, s 104(6) a. Must be compliance with s 103: b. Must get leave under s 104(2). Leave cannot be given unless s 104(6)(a) and (b). ie (a) D has given evidence is adverse to the coaccused, and (b) evidence has been admitted. c. Consider s 192 and ss 135, 137 when considering leave (Fernando). a) For the Crown to crossexamine D on credibility, there first must be compliance with s 103: ie the evidence could substantially affect the assessment of the credibility of the witness. (Having regard to whether: (a) it shows that W make a false representation; and (b) when the alleged acts occurred: s 103(2)).

* eg XE on misconduct matters did not satisfy s 103, but conviction for corruption did in ElAzzi) b) Furthermore, the Crown must be granted leave under s 104(2) to XE the D on credibility.

* The D must have tried to discredit the Crown W's credibility: Two statutory conditions for granting of leave in s 104(4): Leave must not be given for XE of D by the Crown under s 104(2) unless evidence adduced by the D has been admitted that: o (a) tends to prove that a witness called by the prosecutor has a tendency to be untruthful, and o (b) is relevant solely or mainly to the witness's credibility. (eg in ElAzzi the D XE prosecution W's on a range of matters - including bribery, tax evasion, assault satisfied)

* Then court must also consider s 192 : ElAzzi. Mandatory factors are: (a) length (b) unfairness (c) importance (d) nature of proceeding (e) power of court to adjourn/make another order/direction etc.

* Court could also consider ss 135 and 137 factors (Fernando). Examples

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*

2) for the Co
accused to XE D on credibility

Misconduct matters involving no element of dishonesty were not relevant to credibility and did not satisfy s 103: ElAzzi Accused, former PO, charged with manufacturing meth. At trial D extensively XE Crown W's about credibility issues (eg briber, tax evasion, assaults, domestic violence, involvement in illicit drugs). Issue: Should the trial judge have granted leave to the Crown under s 104 to XE the accused about credibility? Yes. Considerations: (1) the D's XE brought out serious criminal histories of prosecution W's, and this established that W's had motive to give evidence that would support Crown case.(2) No finding by judge that prosecution W's had been crossexamined more than reasonably necessary. (3) prospect of prejudice to accused was critical consideration - as it is exceptional for it to be adduced. (4) high probative value of evidence to credibility, (5) though likely to be highly prejudicial to accused, diminished by very different nature of corruption charges. (6) fairness considerations need to be taken into account. Rule: S 104(6) Leave is not to be given for crossexamination by another defendant unless: (a) the evidence that the defendant to be crossexamined has given includes evidence adverse to the defendant seeking leave to crossexamine, and (b) that evidence has been admitted.

"adverse"

* Means against: Fernando - eg an account given that is inconsistent with the version of another. (here Brendan, coaccused, gave a statement, that was inconsistent with the other coaccused Vesters. Brenanda attributed primary repsponsiblity to Vester.)

* Supports the prosecution's case against the coaccused in a material way, or evidence undermines coaccused's defence: Murdoch v Taylor; Fernando

* Need not be hostile:

* Denials as adverse? only where crime could have been committed by one or other of the accused that a mere denial will amount to evidence 'against' the other. Court in deciding whether or not to grant leave: Fernando

* Consider s 192

* Considers s 135

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