Veracity

Question 1

If veracity is an element of the offence for which a person is being tried…?

Bail or sentencing hearings…?

Answer 1

The veracity rules do not apply.

The veracity and propensity rules do not apply, except when the evidence is covered by S 44 (sexual experience of complainant)

Question 2

S 37 (1)

S 37 (2)

Answer 2

A party MAY NOT offer evidence in a civil or criminal proceeding about a person’s veracity UNLESS the evidence is SUBSTANTIALLY HELPFUL in assessing that person’s veracity.

In a criminal proceeding, evidence about a defendant’s veracity must also comply with S 38 or, as the case requires, S 39.

Question 3

S 37 (3)

In deciding, for the purposes of 37(1) whether the evidence is substantially helpful, the judge may consider, among any other matters, whether the proposed evidence tends to show one or more of the following matters… (5)

Answer 3

(a) lack of veracity on the part of the person when under a legal obligation to tell the truth (e.g. in an earlier proceeding or in a signed declaration)

(b) that the person has been convicted of one or more offences that indicate a propensity for dishonesty or lack of veracity.

(c) any previous inconsistent statements made by the person

(d) bias on the part of the person

(e) a motive on the part of the person to be untruthful

Question 4

S 37 (4)

A party who CALLS a witness…

Answer 4

(a) MAY NOT offer evidence to challenge that witness’s veracity unless the judge determines the witness to be HOSTILE; but

(b) MAY offer evidence as to the facts in issue contrary to the evidence of that witness.

Question 5

S 37 (5)

For the purposes of this Act, veracity means…

Answer 5

the disposition of a person to refrain from lying, whether generally or in the proceeding.

Question 6

“Substantial Helpfulness”

Answer 6

Higher threshold than relevance under S 7.

It has to do more than simply have a tendency to prove or disprove a matter.

The test applies to both veracity evidence given in chief and elicited through cross-examination.

Question 7

Automatic right to ask any witness if they have convictions?

Answer 7

No. To be admissible, such questions must be substantially helpful in assessing the person’s veracity.

Question 8

S 38 (1) and (2) - Evidence of a DEFENDANT’s veracity

Answer 8

(1) A defendant in a criminal proceeding MAY offer evidence about his/her veracity.

(2) The prosecution in a criminal proceeding MAY offer evidence about a defendant’s veracity ONLY IF:

(a) the defendant has offered evidence about his veracity or has challenged the veracity of a prosecution witness by reference other than the facts in issue; and

(b) the judge permits the prosecution to do so.

Question 9

S 38(3) - In determining whether to give permission under S 38(2)(b), the judge MAY take into account the following matters…(3)

Answer 9

(a) the extent to which the defendant’s veracity or the veracity of a prosecution witness has been put in issue in the defendant’s evidence.

(b) the time that has elapsed since any conviction about which the prosecution seeks to give evidence.

(c) whether any evidence given by the defendant about veracity was elicited by the prosecution.

Question 10

In order to be able to offer evidence of the defendant’s veracity… (4)

Answer 10

-the prosecution must show that veracity is relevant (veracity must be “in issue”)
-the defendant has offered evidence about his veracity, or has challenged the veracity of a prosecution witness by reference to matters OTHER THAN the facts in issue
-the proposed evidence must meet the substantial helpfulness test.
-the prosecution must get permission from the judge.