Credibility Evidence

Question 1

s 101A

Answer 1

Credibility evidence (definition)

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. (hearsay through to tendency & coincidence)

Question 2

s 102

Answer 2

The credibility rule

Credibility evidence about a witness is not admissible.

Question 3

s 103

Answer 3

Exception: cross-examination as to credibility

(1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.

(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 representation 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.

Question 4

s 104

Answer 4

Further protections: cross-examination as to credibility

(1) This section applies only to credibility evidence in a criminal proceeding and so applies in addition to section 103.

(2) A defendant must not be cross-examined about a matter that is relevant to the assessment of the defendant’s credibility, unless the court gives leave.

(3) Despite subsection (2), leave is not required for cross-examination by the prosecutor about whether the defendant—

(a) is biased or has a motive to be untruthful, or

(b) is, or was, unable to be aware of or recall matters to which his or her evidence relates, or

(c) has made a prior inconsistent statement.

(4) Leave must not be given for cross-examination by the prosecutor under subsection (2) unless evidence adduced by the defendant has been admitted that—
(a) tends to prove that a witness called by the prosecutor has a tendency to be untruthful, and
(b) is relevant solely or mainly to the witness’s credibility.

(5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to—
(a) the events in relation to which the defendant is being prosecuted, or
(b) the investigation of the offence for which the defendant is being prosecuted.

(6) Leave is not to be given for cross-examination by another defendant unless—
(a) the evidence that the defendant to be cross-examined has given includes evidence adverse to the defendant seeking leave to cross-examine, and
(b) that evidence has been admitted.

Question 5

s 106

esp s 106(1) and s 106(2)(c)

Answer 5

Exception: rebutting denials by other evidence

(1) The credibility rule does not apply to evidence that is relevant to a witness’s credibility and that is adduced otherwise than from the witness if—
(a) in cross-examination of the witness—
(i) the substance of the evidence was put to the witness, and
(ii) the witness denied, or did not admit or agree to, the substance of the evidence, and
(b) the court gives leave to adduce the evidence.

(2) Leave under subsection (1) (b) is not required if the evidence tends to prove that the witness—
(a) is biased or has a motive for being untruthful, or
(b) has been convicted of an offence, including an offence against the law of a foreign country, or
(c) has made a prior inconsistent statement, or
(d) is, or was, unable to be aware of matters to which his or her evidence relates, or
(e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth.

Question 6

s 108

Answer 6

Exception: re-establishing credibility

(1) The credibility rule does not apply to evidence adduced in re-examination of a witness.

(3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if—
(a) evidence of a prior inconsistent statement of the witness has been admitted, or
(b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion,
and the court gives leave to adduce the evidence of the prior consistent statement.