Part 3.7 - Credibility Flashcards
101A Credibility evidence
For the purposes of this Division, credibility evidence in relation to a witness or other person is evidence relevant (a) ONLY to the credibility of the witness, or (b)(i) relevant for credibility and (ii) another inadmissible purpose because of a provision of Parts 3.2 (Hearsay) 3.3 (Opn), 3.4 (Admissins), 3.5 (Evidence of Judgments/Convictions), or 3.6 (T/C).
Note: ss 60 and 77 will not affect the operation of this section, because they cannot apply to evidence that is yet to be admitted.
102 The credibility rule
Credibility evidence about a witness is not admissible.
Broad points
● So you can’t just say “my W is truthful”
○ If it’s only relevant for a credibility purpose or also for another purpose but inadmissible for that purpose (e.g a prior consistent statement might be inadmissible hearsay)
■ But can re-establish their credibility and you’re allowed to adduce prior consistent statements to do so (with leave)
● And you can’t just at large attack veracity of OP’s witnesses
○ Needs to be capable of “substantially affecting” their credibility
○ And there are additional protections for accused in addition to above
■ Pros needs leave
● Will only get if A has attacked credibility of their witness (otherwise than in connection with the case); BUT
● Pros doesn’t need leave to XE re: motive to lie, prior inconsistent statement, or ability to recall
■ Co-accused can’t unless the accused they want to XE re: credibility has run a cut throat defence
○ If you put something to a W in XE and they deny (or don’t admit) it, you can then adduce credibility evidence to rebut that denial (with leave) but don’t need leave for certain categories
Credibility evidence regarding non-witnesses
● If maker of PR not being called can only adduce cred evidence if could “substantially affect”
● If that person is the accused, also need leave of the Court except for certain categories and if you do need leave, can only be given if A attacks credibility of P witness otherwise than in connection with the case.
General exceptions
Exceptions: ● Evidence adduced in XE ● Evidence in rebuttal of denials ● Evidence to re-establish credibility ● Evidence of persons with specialised knowledge ● Character of accused persons
103 Exception - Cross-examination as to credibility
(1) The CR does not apply to evidence adduced in X-exam of a W if the evidence could substantially affect the assessment of the credibility of the W.
(2) w/o limiting matters could regard, Court to have regard to:
(a) Whether ev tends to prove W knowingly or recklessly made a false representation when under an obligation to tell the truth; and
(b) The period of time that has elapsed since the relevant acts or events
E.g: PICS (best example); priors (maybe)
104 Further protections—X-exam as to credibility (criminal proceedings)
Prosecution
(1) This section applies only to credibility evidence in a criminal proceeding and so applies in addition to section 103.
(2) Accused can’t be cross-examined about credibility unless the court gives leave (including re: prior)
(4) And leave MUST NOT BE GIVEN UNLESS:
(a) Evidence that’s been adduced by the A has been admitted that tends to prove that a W called by the prosecutor has a tendency to be untruthful and (b) that evidence is relevant solely or mainly to the W’s credibility.
(5) unless that is evidence in relation to the events for which (a) the A is being prosecuted or (b) the investigation of this offence.
(3) BUT LEAVE IS NOT REQUIRED for a prosecutor to cross examine about whether the accused:
(a) Is biased or has a motive to be untruthful
(b) Is or was unable to be aware of or recall matters to which their evidence relates (prevaricating); or
(c) Has made a prior inconsistent statement
XE by another accused
(6) Leave must not be given for XE by another accused unless (a) the evidence that the accused to be cross-examined has given includes evidence that is adverse to the accused seeking leave to cross-examine (b) and that evidence has been admitted (can only XE co-accused about credibility if they run a cut throat defence)
106 Exception for rebutting denials by other evidence
(1) Credibility rule does not apply to evidence that is relevant to a W’s credibility and that is adduced otherwise than from a W if:
● (a)(i) In XE the evidence’s substance was put to the W; and
● (ii) W denied/did not admit/agree to substance of evidence
(b)And the Court gives leave to adduce the evidence.
(2) But leave not required if the evidence tends to prove that the W:
● (a) Is biased or has a motive for being untruthful
● (b) Has been convicted of an offence (inc foreign offence)
● (c) Has made a prior inconsistent statement
● (d) Is, or was, unable to be aware of matters to which their evidence relates
● (e) Has knowingly or recklessly made a false rep while under a legal obligation (in Oz or foreign land) to tell the truth
108 Exception for re-establishing credibility (admitting prior consistent statements)
(1) CR doesn’t apply to evidnce adduced in re-exam of a W.
(3) Cred rule does not apply to evidence of a PCS of a W if:
(a) evidence of a PIS of that W has been admitted; or
(b) It is or will be suggested (either expressly or by implication) that evidence given by the W has been constructed or fabricated or is the result of suggestion (whether deliberate or otherwise)
And the court gives leave to adduce the evidence of the prior consistent statement
108A - Admissibility of evidence of credibility of person who has made a previous representation
(1)(a) If evidence of a PR is has been admitted and (b) maker has not been and will not be called to give evidence
credibility evidence about that person inadmissible unless it could substantially affect their credibility
(2) Crt to have regard to usual factors of (a) knowingly or reckless made false rep when under oblig to tell the truth + (b) period that has elapsed since relevant acts or events.
108B - Further protections—previous representations of an accused who is not a witness
(1) Applies in addition to 108A in criminal proceedings
(2) Need leave to adduce credibility evidence about an accused
(3) but leave not required if evidence about whether (a) A is biased or has motive to be untruthful (b) is/was unable to recall events to which PR relates or (c) has made a PIS → then don’t need leave
(4) And if P needs leave, will only be given if evidence adduced by the A has been admitted that (a) tends to prove W called by P has tendency to be untruthful (b) relevant/solely/mainly to W credibility
(5) reference in (4) to evidence doesn’t include reference to evidence of conduct in relation to (a) the events in relation to which the accused is being prosecuted OR (b) the investigation of the offence for which the A is being prosecuted.
(6) Another accused must not be given leave under subsection (2) unless the PR of the accused that has been admitted includes evidence adverse to the accused seeking leave.
108C - Exception—evidence of persons with specialised knowledge
(1) (a) Experts can give credibility evidence if (b)(i) based wholly/substantially on their specialised knowledge gained by training, study, experience and (ii) the evidence could substantially affect the credibility of a W, and (c) court gives leave
(2) (a) SK includes reference to SK of child development/behaviour including impact of sexual abuse on children and post-abuse behavr
(b) includes reference to opinion re development/behaviour of children generally/ DB of children who’ve been sex-offence victims
