Credibility Flashcards
Credibility evidence
Credibility evidence is evidence that is relevant to a witnesses credibility (credibility and reliability) and is relevant only because it affects the assessment of the witnesses credibility OR is relevant because it affects the witnesses credibility and is relevant for another purpose for which it is not admissible (101A).
Credibility evidence is not admissible unless an exception applies (102).
Exceptions to credibility rule (list)
- XXN as to credibility (103)
- Further protections for A in 104
- Rebutting denials with other evidence (106).
- Re-establishing credibility (108).
- Credibility of person who made PR (not a witness) (108A).
- Where the non-witness who made the PR is A (108B).
- Evidence of specialised knowledge (108C).
- Evidence about the character of A (110) and evidence about character of co-accused (111).
Exception - XXN as to credibility
The credibility rule does not apply to evidence adduced in XXN of a witness if the evidence could substantially affect the assessment of the credibility of the witness (court to have regard to whether evidence tends to prove the witness knowingly or falsely made a false representation when under an obligation to tell the truth and the period that has elapsed since the events to which the evidence relate occurred) (103).
Further protections for A in criminal proceedings
An accused cannot be cross-examined on a credibility matter unless the court gives leave. However don’t need leave to cross-examine about whether the accused is biased or has a motive to be untruthful, is or was unable to be aware of or recall matters to which the evidence relates, or has made a prior inconsistent statement.
The court must not give leave unless the accused has adduced evidence that tends to prove that a witness called by the prosecution has a tendency to be untruthful (other than evidence relating to current charges or investigation) and is relevant solely or mainly to that witnesses credibility.
A co-accused must not be given leave to cross-examine the accused unless the evidence that the accused has given is adverse to the co-accused.
(104).
Rebutting denials with other evidence
Credibility rule does not apply to evidence that is relevant to a witnesses credibility and is adduced otherwise then from the witness if the substance of the evidence was put to the witness in cross-examination and they denied or did not admit it and the courts gives leave.
However, leave not required if the evidence tends to prove that the witness is biased or has a motive for being untruthful, has been convicted of an offence (including foreign), has made a PIS, is or was unable to be aware of matters to which their evidence relates, or has knowingly or recklessly made a false representation well under an obligation to tell the truth (106). 
Re-establishing credibility
(108) The credibility rule does not apply to evidence adduced in re-examination of the witness. A witness may only be questioned in re-examination on matters arising from cross-examination unless the court gives leave (39).
The credibility rule does not apply to evidence of a PCS if evidence of a PIS of the witness has been admitted or it is or will be suggested the evidence given by the witness has been fabricated (deliberately or not) and the court gives leave. 
Credibility of person who made PR (not a witness)
(108A).
If a previous representation has been admitted and the person who made it has not and will not be called, credibility evidence is not admissible unless it could substantially affect that persons credibility.
Court must have regard to whether the evidence tends to prove the person knowingly or recklessly made a false representation when under an obligation to tell the truth and the period between the relevant events to which the representation related and the making of the representation.
(108B) - where A is the non-witness who made the PR:
Where the person who made the previous representation is the accused (and they’re not giving evidence), credibility evidence in relation to the accused is not admissible unless the court gives leave. However, leave is not required where the evidence is about whether the accused is biased or has a motive to be truthful, is or was unable to be aware of or recall matters to which the representation relates, or has made a PIS.
Prosecution must not be given leave unless the accused has adduced evidence that tends to prove that the prosecution witness has a tendency to be untruthful (other than evidence relating to current charges) and is relevant solely or mainly to that witnesses credibility.
Co-accused must not be given leave unless the previous representation of the accused that has been admitted includes evidence adverse to the co-accused.
Evidence of specialised knowledge (credibility)
An expert may give expert evidence (based on specialised knowledge as a result of training, study or experience) about the credibility of another witness if it could substantially affect the credibility of that witness and the court gives leave.
Specialised knowledge includes knowledge of child development and behaviour (including knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse).
Exceptions elsewhere in the EA (credibility)
Evidence about the character of an accused (110) and evidence about the character of a co-accused (111).
