Credit

Question 1

What is the difference between Credit and Character?

Answer 1

Credit = Relates to the witness and/or evidence

Character = Relates to the Accused where they raise their own good character

Different rules apply - one relates to the Accused the other relates to witnesses and their evidence

Question 2

What is credibility?

Answer 2

Credibility of a PERSON: who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person’s ability to observe or remember facts and events about which the person made the representation.

Credibility of a WITNESS: means the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.

Question 3

Under what section of the Evidence Act do you seek leave of the Court?

Answer 3

Section 192

192 - Leave, permission or direction may be given on terms

(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.
(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:
(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and
(b) the extent to which to do so would be unfair to a party or to a witness, and
(c) the importance of the evidence in relation to which the leave, permission or direction is sought, and
(d) the nature of the proceeding, and
(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

Question 4

What is found at Section 106 of the Evidence Act?

Answer 4

Otherwise than from a witness - tendering Statement

Section 106 is an exception to the credibility rule and relates to rebutting denials by other evidence

Section 106 states that 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 5

Under what section of the Evidence Act is the Credibility Rule?

Answer 5

Section 102

Question 6

Under what section of the Evidence Act is “Credibility Evidence” defined?

Answer 6

Section 101A

Question 7

Is there a definition of Character in the Act?

Answer 7

No.

Question 8

Section 102 (The Credibility Rule) says?

Answer 8

Credibility evidence about a witness is NOT admissible.

Question 9

Can credibility evidence be admissible?

Answer 9

Although the credibility rule says it is NOT admissible, it may be admissible for another purpose.. then, in for one thing, in for credit.

Question 10

Section 101A of the Act (ie: how credibility evidence is defined) was inserted into the Act in response to which case?

Answer 10

Adam v the Queen (2001)

Question 11

How is credit relevant?

Answer 11

Credit goes towards the reliability (truthfulness) of the witness generally (eg: bias/motive)

Goes towards the reliability of their evidence (eg: distance of perception, memory, vision).

Question 12

How is credibility evidence defined? Cite legislation.

Answer 12

Section 101A of the Evidence Act states that “Credibility Evidence” is evidence relevant to the credibility of a witness or person that either:

(a) is relevant only because it affects assessment of credibility of witness or person
(b) relevant because if affects assessment of credibility of witness or person and is relevant but not admissible due to hearsay or another rule.

Question 13

Why was Section 101A of the Evidence Act introduced?

Answer 13

Section 101A was introduced in response to the decision in Adam v the Queen.

Adam v the Queen found that the credibility rule does not apply if the evidence is relevant to both credibility and a fact in issue, even if the evidence is not admissible for the purpose of proving that fact in issue - court must consider whether evidence is relevant only to credibility, not whether it is admissible only as going to credit - thus, “credibility rule” not engaged if for credibility and another purpose.

Question 14

What is the Credibility Rule. Cite legislation.

Answer 14

Section 102 of the Evidence Act states that “Credibility Evidence” about a witness is not admissible.

Question 15

What exceptions apply to the credibility rule? Cite legislation

Answer 15

Sections 103, 104 and 106 of the Evidence Act are exceptions to the credibility rule.

Section 103 - Cross examination as to credibility
Section 104 - Further protection for cross examination of defendant
Section 106 - Rebutting denials by other evidence.

Question 16

What is found at Section 104 of the Evidence Act?

Answer 16

Section 104 provides further protections in relation to cross examination as to credibility.

Applies only to credibility evidence in a criminal proceeding and in addition to section 103.

(Leave must be given).

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.

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 17

What is found at Section 103 of the Evidence Act?

Answer 17

Section 103 is an exception to the credibility rule and relates to cross examination as to credibility.

Section 103 states:

(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 18

What are the main points in relation to Section 103 of the EA?

Answer 18

• Cross Examination as to Credibility
• Exception to the Credibility rule - when two circumstances exist:

The evidence was adduced in cross-examination AND the evidence could SUBSTANTIALLY AFFECT THE ASSESSMENT OF THE CREDIBILITY of the witness.

“Credibility rule does not apply to evidence adduced in cross examination if the evidence could substantially effect the credibility of the witness”.

• Can have regard to both the credibility of the witness and the evidence

Question 19

What are the main points in relation to Section 104 of the EA?

Answer 19

Further protections for cross examination of Defendant.

• The Defendant can be cross-examined about credibility WITHOUT leave if:
• he is biased or has a motive to be untruthful; or
• if he is or was unable to be aware of or recall matters to which his/her evidence relates, or
• has made a prior inconsistent statement

The Defendant can be cross-examined about credibility WITH leave if:
*. he has attacked the credibility of a crown witness in relation to something other than the current proceedings.

Question 20

What are the main points in relation to Section 106 of the EA?

Answer 20

Relates to rebutting denials by other evidence.

If a witness denies a matter related to their credibility, you can seek leave and then adduce evidence on the same credibility issue from a different witness.

YOU DON’T NEED TO SEEK LEAVE if witness:

• is biased or has motive for being untruthful, or
• has been convicted of an offence, or
• has made a prior inconsistent statement, or
• is, or was unable to be aware of or recall matters to which his/her evidence relates, or
• has knowingly or recklessly made a false representation

Question 21

What are the main points in relation to Section 108 of the EA?

Answer 21

You can, in re-examination, re-establish credibility by adducing evidence or a prior consistent statement if it has been or will be suggested or implied the witness lied.

108 is your massive friend!

Question 22

What is found at Section 108 of the Evidence Act?

Answer 22

Section 108 is an exception to the credibility rule.

Section 108 states that the credibility rule does not apply to evidence adduced in re-examination of a witness.

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.

Question 23

What is found at Section 110 of the Evidence Act?

Answer 23

Section 110 - Evidence about character of accused persons

(1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character.
(2) If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character.
(3) If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect.

Question 24

What is found at Section 112 of the Evidence Act?

Answer 24

Section 112 is a rule that leave is required to cross-examine about character of accused or co-accused and states that a
Defendant must not be cross-examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave under Section 192.

Question 25

What does Section 101A say?

Answer 25

101A Credibility evidence

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.

Question 26

What is “Character” evidence?

Answer 26

Character evidence (not defined in the Act) relates only to the defendant and has two possible uses:

• Relevant to the defendant’s credibility as a witness (credibility limb).
• Relevant as to whether the defendant is the type of person who would commit the crime as charged (propensity/tendency limb).

Question 27

What is a summary of the Credit and Character Sections of the Evidence Act?

Answer 27

101A - Definition

102 - Credibility Rule

103 - First exception - Cross Examination / substantially affects

104 - Further protection - Defendant / leave required unless biased, unable to be aware of or recall, or prior inconsistent statement

106 - Can call a witness solely to rebut a denial about a credibility matter or tender statement

108 - Can re-establish credibility when it is put that witness lied

110 - credibility and other rules don’t apply to evidence adduced by the defendant that he is, generally or in a particular respect, of good character.

111 - the credibility and other rules don’t apply to evidence about a defendant’s character raised by a co-defendant, or to evidence raised to rebut it.

112 - Deft must not be cross-examined regarding character without leave.

Question 27

What are the main points in relation to Section 110 of the EA?

Answer 27

• Rules do not apply to cross-examination of a defendant where evidence has been tendered b the defendant to prove that he is either generally, or in a particular respect, of good character.

Question 28

What did the case of Slack [2003] NSWCCA 93 find in relation to credibility?

Answer 28

“For an allegation to be able to be put as credit, it must be such that if the allegation was accepted by the witness it would logically weaken confidence in the witness’ veracity as a witness of truth.

Question 29

Where is credibility defined and what does it include?

Answer 29

Credibility is defined in the dictionary and includes ‘the person’s ability to observe or remember facts and events about which the person made the representation”.

Amongst other things, court is to consider whether the evidence tends to suggest that the witness has recklessly or deliberately told untruths when obliged to tell the truth and the period of time since the events elapsed.

Question 31

Section 106 and Section 43 work together. What does each of these sections relate to?

Answer 31

Section 43 relates to a witness being cross-examined on a prior inconsistent statement

.. and states that “a witness may be cross-examined 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 cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, 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 re-open the party’s case.

Section 106 is re-establishing credibility during re-examination.
If a witness denies a matter related to their credibility, you can SEEK LEAVE and then adduce evidence on the same credibility issue from a different witness or from their own statement.

*Cross under s43 which complies with s106

Question 32

What did the case of Adam v the Queen (2001) find?

Answer 32

Adam v The Queen (2001) related to s102 (the credibility rule) - was the murder of an off-day police officer during a scuffle outside hotel - crown witness TS made statements to police supporting crown case - became clear at trial TS would give evidence unfavourable to Crown - Crown given leave under s38 to cross on prior inconsistent statement - Judge ruled that statements could be used as proof of facts asserted. Dismissed on appeal - no error in grant of leave pursuant to 38 evidence was not excluded by credibility rule pursuant to whether evidence is relevant ONLY to credibility, not whether it is admissible only as going to credit - in this case evidence was relevant not just to credibility but also directly relevant to facts in issue.

**Because of the case of Adam Section 101A was inserted into the Act (which is the definition of credibility evidence). 101A states:

“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.

Question 32

What is found at Section 111 of the Evidence Act?

Answer 32

111 Evidence about character of co-accused

(1) The hearsay rule and the tendency rule do not apply to evidence of a defendant’s character if:
(a) the evidence is evidence of an opinion about the defendant adduced by another defendant, and
(b) the person whose opinion it is has specialised knowledge based on the person’s training, study or experience, and
(c) the opinion is wholly or substantially based on that knowledge.
(2) If such evidence has been admitted, the hearsay rule, the opinion rule and the tendency rule do not apply to evidence adduced to prove that that evidence should not be accepted.

Question 33

What did the case of Col v R find in relation to credibility evidence?

Answer 33

The appellant submitted that the victim’s police statement was “credibility evidence” as defined in s101A(b) of the Act, because it affected the credibility of the victim and was relevant for an inadmissible purpose, namely a hearsay purpose. The appellant maintained that the statement did not fall within an exception to the hearsay rule. In particular, it did not fall within the exception where the maker of the representations was available to give evidence (s66), because the representations were made for the purpose of indicating the evidence the person would be able to give: s66(3).

Further, the appellant conceded that the representations contained in the statement were admissible as an exception to the credibility rule, since the statement fell within the exception contained in s103. It was adduced in cross-examination of the victim by the Crown Prosecutor pursuant to the leave granted under s38. It could not be seriously contested that the evidence substantially affected the assessment of the credibility of the victim.

In addition, the contents of the statement were admissible pursuant to s106 as a prior inconsistent statement. The Crown Prosecutor complied with the requirements of s106(1) and the victim denied the substance of the evidence, that is, whilst agreeing that she had received burns after she had been doused with methylated spirits which was ignited, she denied any knowledge of how that occurred and that the conduct of the appellant was deliberate. Once the contents of the statement were admissible for a non-hearsay purpose, the representations constituted evidence of the facts.

Question 35

What did the case of Nominal Defendant v Clements (1960) and Szach (1980) find?

Answer 35

“Where recent invention is suggested, a prior statement can be tendered even if otherwise inadmissible”.

Question 36

What did the case of R v Stadler find in relation to Character evidence?

Answer 36

Prosecution not to establish Defendant is of bad character but rather allow the Court to make a neutral finding.

Question 37

Credibility/Credit generally is?

Answer 37

Generally if we or the defence raise it with a witness, including the defendant, it is credit evidence.

Question 38

Character evidence generally is?

Answer 38

If the Defendant raises his own reputation it is character evidence.

Question 39

Where are the definitions found for Credibility and Character? (Rule and definition)

Answer 39

The Dictionary to the Evidence Act states:

Credibility Evidence is defined in Section 101A

The Credibility Rule is found at Section 102.

There is no Definition in the Act for Character.

Question 40

What two things can credit be relevant to?

Answer 40

• The reliability (truthfulness) of the witness generally.

* The reliability of the particular testimony given.

Question 41

The OLD Section 102 credibility rule (now superceded) stated “Evidence that is relevant ONLY to a witness’s credibility is not admissible” the current credibility rule states “credibility evidence about a witness is not admissible”. What is the difference?

Answer 41

The word “ONLY” is the difference. The current rule means you may get evidence in about credit if it is relevant for another purpose.

Question 42

Section 101A contains the definition of credibility evidence. Why was it introduced?

Answer 42

• After the HCA decision of Adam v the Queen
• The prior inconsistent (police) statement was relevant to both credibility and other issues.
• Thus 102 was not engaged.
• Statement also fell within s60 exception to hearsay rule (it was being admitted for non-hearsay purpose, therefore not caught by s59)
• By having dual purposes the statement avoided both restrictions

*Hence the addition of 101A

Question 43

What are the main points about Section 111 of the Evidence Act?

Answer 43

111 Evidence about character of co-accused

(1) The hearsay rule and the tendency rule do not apply to evidence of a defendant’s character if:
* the evidence is evidence of an opinion about the defendant adduced by another defendant, and
* the person whose opinion it is has specialised knowledge based on the person’s training, study or experience, and
* the opinion is wholly or substantially based on that knowledge.

• If such evidence has been admitted, the hearsay rule, the opinion rule and the tendency rule do not apply to evidence adduced to prove that that evidence should not be accepted.