Credibility

Question 1

Meaning of ‘credibility’

Answer 1

‘Credibility’ is defined as the credibility of all or any part of the evidence of the W, and includes their ability to observe or to remember facts and events about which they’re giving evidence.

Synonymous with reliability (Dupas)

Question 1

101A – Credibility Evidence (defined as inadmissible credibility evidence)

Answer 1

Credibility evidence is evidence relevant to the credibility of a W or a person that:

• is relevant to an ultimate fact in issue ONLY because it affects the assessment of the credibility of the W or person, OR
• is relevant to an ultimate fact in issue for a credibility purpose AND another purpose but it is not admissible for that latter purpose (s101A).

SO: the effect of the s101A definition is that if evidence:

• goes to a person’s credibility; AND
• is relevant: AND
• is admissible for another reason,

then it is NOT CREDIBILITY EVIDENCE for the purposes of this section.

Question 2

102 – The credibility rule

Answer 2

Credibility evidence about a witness is prima facie inadmissible.

Question 3

103 Exception to credibility rule: cross-examination

Answer 3

The credibility rule does NOT apply to evidence adduced from a W during XXN IF the evidence could SUBSTANTIALLY affect the assessment of that W’s credibility.

Without limiting matters to which court may have regard, the court is to have regard to:

• whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when under an obligation to tell the truth; and
• the period of time that has elapsed since the acts or events to which the evidence relates were done or occurred.

Question 4

106 Exception to credibility rule: rebutting denials by other evidence

Answer 4

The credibility rule does NOT apply to W evidence that is:

• relevant to a witness’ credibility AND
• adduced otherwise than from the witness;

IF in XXN, the W:

• is questioned on the substance of the evidence; AND
• denies that evidence (or did not admit/agree to it); AND
• the Court gives leave.

HOWEVER, leave is not required if the evidence tends to prove that the W being XXNed:

• is biased or has a motive to lie; or
• has PRIOR CONVICTIONS; or
• has made PRIOR INCONSISTENT STATEMENTS; or
• is UNABLE TO RECALL matters to which their evidence relates; or
• on a past occasion has made a FALSE REPRESENTATION when under an obligation to tell truth.

Question 5

108 Exception to credibility rule: re-establishing credibility

Answer 5

If, under s106, credibility evidence relating to a witness (W1) is adduced from another witness (W2) to rebut a denial by W1, the party who called W1 may seek to re-establish the credibility of W1 by:

• re-examining W1; AND/OR
• cross-examining W2.

Question 6

108A Admissibility of evidence of credibility of maker of previous representation (HS evidence)

Answer 6

IF:

• evidence of hearsay has been admitted AND
• the maker has NOT been, and will not be, called to give evidence, THEN
• credibility evidence about them is admissible IF it could SUBSTANTIALLY affect the assessment of their credibility.

Question 7

108C – Exception to credibility rule: expert opinion of W’s credibility

Answer 7

The credibility rule does not apply to evidence given by a person about the credibility of another W if:

• the person has specialised knowledge; AND
• that knowledge is based on training, study or experience; AND
• the credibility evidence is wholly or substantially based on that knowledge; AND
• the credibility evidence could SUBSTANTIALLY affect the assessment of the credibility of the W in question; AND
• the court gives leave.