10.1 Credibility Rule

Dictionary Pt 1 – Definitions
Credibility of a person who has made a representation that as 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 evidence.

The credibility rule
s102
Evidence that is relevant only to a witness’s credibility is not admissible.

Adam v The Queen (2001)
Facts: murder of policeman (Carty) in car park of pub in Fairfield off duty drinking with friends. There was confrontation and at 2am he was leaving with friends there was alteration in car park where he was inflicted with stab wound and died. Adam charged with murder. A guy called Seiko was also wounded in the altercation. S was the first one involved in the altercation with Carty before others became involved. S charged a few days later with murder of Carty. He went to jail refused bail. He then made a statement which supported the prosecution case against Adam. Shortly after, Adam was charged with the murder and the charge against S was dropped.

It came to trial of Adam. S called to give evidence at trial. He turned up at trial and started backing down from his prior statement. He stated only what was occurring generally in car park. Under s38, he was an unfavourable witness for the crown, and had given a prior inconsistent statement. The statement given earlier was put into evidence when S was being cross-examined. So there are two sets of evidence given by S.

A prior statement was relevant to a fact in issue it was a statement relating to the issue as to who killed a policeman.
Issue: Whether prior statement of S could be used as to the truth of the statement or only as to the credit of S.

Held: The criterion for the operation of s102 is the relevance of the evidence, not its admissibility.
•    So, evidence will be admissible in regards to credibility if it is relevant to anything else in the case regardless of whether it would be admissible for that other reason.
•    In this case, regardless of the fact that the prior statement was hearsay, and as a result excludable on those grounds, s102 was bypassed.
•    In fact, here the prior inconsistent statement could be taken as evidence of its truth  because the prior inconsistent statement to police was relevant to both credibility and other issues, s102 was not engaged, and the statement also fell within s60 exception to hearsay (it was being admitted for a non-hearsay purpose therefore was not caught by s59)  thus by having dual purposes, the statement avoided both restrictions.

Palmer v the Queen (1998)  (The Credit rule is not a hard and fast rule.)
Facts: Palmer was charged with the sexual assault of a 14-year old girl who was the daughter of P’s friend.
•    She was home sick after being in hospital, her mother had to go to work and P offered to pop in and check on the daughter.
•    During
course of trial the daughter gave evidence. P’s counsel alleged that her motive for lying was that she didn’t like Mr P for some reason.
•    Mr Palmer was cross-examined heavily on questions as to why the girl might lie about the incident.
•    General view is that you can’t question accused about whether the complainant has a motive to lie because that reverses the onus of proof, and it cannot be expected that the accused knows what is in the complainant’s head.
Issue: Did this evidence about the girl’s motive to lie go only to credit or also to a fact in issue?
Held:  It went to both a fact-in-issue and not just the credit of the complainant  the existence or otherwise of a plaintiff’s motive to lie could affect the jury’s assessment of the probability of the occurrence of the alleged offence. (per McHugh J)
•    The truth of the proposition that the credibility of evidence is locked to the credibility of the deponent, is in reality recognised by the rule that a witness can be cross examined as to matters of credit  because that is so, it is irrational to draw a rigid distinction between matters of credit and matters going to the facts-in-issue.
•    The crown was in fact entitled to cross-examine the accused as to whether he knew of any facts that would explain the complainant’s allegation  failure to reveal any facts that would provide a reason for the complainant concocting her complaint, may assist the jury to find that her evidence was true.

Further protections: defendants making unsworn statements
s105
(1) This section applies only in a criminal proceeding in which a defendant has, under a law of a State or Territory, made an unsworn statement.
(2) Evidence that is relevant only to the defendant’s credibility may be adduced from a person other than the defendant if:
(a) the evidence has substantial probative value; and
(b) subsection (4) or (5) applies
(3) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to:
(a) whether the evidence tends to prove that the defendant knowingly or recklessly made a                   false representation when the defendant 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 occurred.
(4) The evidence may be adduced if it is relevant to whether the defendant:
(a) is biased or has motive to be untruthful; or
(b) is, or was, unable to be aware of or recall matters to which his or her statement relates; or
(c) has made a prior inconsistent statement
(5) The evidence may, if the court gives leave, be adduced if the defendant has:
(a) suggested in his or her statement that he or she is of good character, either generally or in a particular respect; or
(b) suggested in his or her statement that a witness called by the prosecutor has a tendency to be untruthful, and the suggestion is relevant solely or mainly to the witness’s credibility.
(6) A reference in para (5)(b) to a suggestion by the defendant does not include a reference to a suggestion about conduct relating 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.

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