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10. Admissibility of Evidence - Credibility
http://www.studentatlaw.com/articles/144/1/10-Admissibility-of-Evidence---Credibility/Page1.html
By Student at Law
Published on 20/07/2007
 
Admissibility of Evidence - Credibility
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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10.2 Attacking the credibility of other side’s witness

•    Irrespective of the Credit Rule, an opponent’s witness can be discredited provided that:
1.)    The evidence has substantial probative value (s.103)
2.)    The questioning in the cross-examination does not go overboard (s.42)
3.)    The witness’ credit may however then be re-established. (s.108)

Exceptions: cross-examination as to credibility
s103 (criminal and civil proceedings)
(1)    The credibility rule does not apply to evidence adduced in the cross-examination of a witness if the evidence has substantial probative value.
(2)    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 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.

R v RPS (1997) (applying s103 of EA)
•    Held: Evidence adduced in cross-examination must have substantial probative value in the sense that it could rationally affect the assessment of the credit of a witness
•    The word ‘substantial’ places a limitation on the Common Law, where almost anything going to credit was allowed unless it had no material weight.
•    However, counsel must be given some freedom in the cross-examination as to whether a matter relates to a fact at issue, or credit  they are not obliged to come directly to the point, and are entitled to start at a distance and work towards their point.

•    s55(1) defines probative value of evidence as the extent to which the evidence could rationally affect the assessment of a fact in issue  it is suggested that where evidence would have a real, persuasive bearing on the reliability of a witness, or the reliability of particular testimony of the witness, the test should be regarded as being satisfied: R v Fowler 1997.

Further protections: cross-examination of accused
s104
(1) This section applies only 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 only because it is relevant to 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 about any matter that is relevant only because it is relevant to the defendant's credibility unless:
(a) evidence has been adduced by the defendant that tends to prove that the defendant is a person of good character; (i.e can cross examine on this with leave) or
(b) evidence adduced by the defendant has been admitted that tends to prove that a witness called by the prosecutor has a tendency to be untruthful, and that is relevant solely or mainly to the witness's credibility. Used when defendant has prior criminal conviction
(5) A reference in paragraph (4)(b)( above ) 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: (Co defendant)
(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.
- Remember to refer to s192 for leave considerations

•    A defendant can ask the plaintiff to reveal precisely what evidence it might seek leave to adduce if good character were raised generally or particularly by the defendant  R v Hamilton (1993)
•    Unfairness to the Accused must be taken into account under s.192  it could be unfair to force the defendant to speculate on potential bad character evidence the plaintiff intends to use:  Stanoevski v The Queen[2001]
•    The Trial Judge must direct jury when any evidence is put forward  it is standard practice to direct a jury that, if they think the defendant has a good character, this may influence their decision as to guilt   Robinson [1999]
•    Character evidence can go to both propensity to commit the crime and credibility, but it must be probative as to both:
– Character evidence about how gentle a person says nothing probative about credibility as a witness  Melbourne v R (1999)
– Character may incidentally affect credibility, especially where the accused’s evidence is in his/her denial  Murphy v R (1985)
•    Note that the general idea is that a defendant cannot be cross-examined on his/her credibility as a witness, unless the defendant puts his/her credit in issue.

Exception: rebutting denials by other evidence
s106
The credibility rule does not apply to evidence that tends to prove that a witness:
(a)    is biased or has a motive for being untruthful; or
(b)    has been convicted of an offence in Australia or overseas; 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 to tell the truth (i.e lied under oath);
if the evidence is adduced otherwise than from the witness and the witness has denied the substance of the evidence.

•    Note the use of s103, 104 and 106 will almost automatically allow you to invoke s108 (see below)

-    The Collateral Fact Rule and s.106
•    Evidence must be "put to" the witness whose credibility is impugned  that is, it is a prerequisite to use of s 106 that the "witness has denied the substance of the evidence"
•    The evidence must therefore have been put to the witness in cross-examination  this means that s103 or s104 must have ALREADY been complied with before s106 is activated  thus, if cross-examination has not been permitted on some matter relevant only to witness's credibility, then evidence of that matter cannot be admitted under s106.

Prior Inconsistent Statements of Witnesses
s43
(1)    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.
(b) a document containing a record of the statement has been shown to the witness
(2)    If, in a cross-examination, a witness does not admit to having made a prior inconsistent statement, the cross examiner is not to adduce evidence of the statement other 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’ 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 a party’s case.

Previous representations of other persons
s44
(1)    Except as provided by this section, a cross examiner must not question a witness about a previous representation alleged to have been made by a person other than the witness.
(2)    A cross-examiner may  question a witness about the representation and its contents if:
(a)    evidence of the representation has been admitted; or
(b)    the court is satisfied that it will be admitted.
(3)    If subsection (2) does not apply and the representation is contained in a document, the document may only be used to question a witness as follows:
(a)    the document must be produced to the witness;
(b)    If the document is a tape-recording, or any other kind of document from which sounds are reproduced - witness must be provided with the means (e.g. headphones) to listen to the contents of the document without other persons present at the cross-examination hearing those contents
(c)    The witness must be asked whether, having examined (or heard) the contents of the document, the witness stands by the evidence that he or she has given in;
(d)    Neither the cross-examiner nor the witness is to identify the document or disclose any of its contents.
(4)    A document that is so used may be marked for identification.

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10.3 Attacking the credibility of a party’s own witness

Unfavourable witnesses
s38
(1)    A party who called a witness may, with the leave of the court, question the witness as though the party were cross-examining the witness, about:
(a) evidence given by the witness that is unfavourable to the party; or
(b) a matter of which the witness may reasonably be supposed to have knowledge and about which it appears to the court the witness is not, in examination in chief, making a genuine attempt to give evidence; or
(c) whether the witness has, at any time, made a prior inconsistent statement
(2)    Questioning a witness under this section is taken to be cross-examination for the purposes of this Act (other than s39).
(3) The party questioning the witness under this section may, with the leave of the court, question the witness about  matters relevant only to the witness’ credibility.
(4) Questioning under this section is to take place before the other parties cross-examine the witness, unless the court otherwise directs.
(6) Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account
(a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave; and
(b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party.

-    Attacking Your Own Witness: Hostile Witness and Credit
•    Generally, a party is neither inclined nor permitted to impeach its own witness (s.102)  however, it is different for hostile witnesses where you are effectively cross-examining them.
•    Under s.38, you can cross-examine your own witness with leave of the Court  you may cross-examine about unfavourable evidence, or if a witness is not making a genuine attempt to answer, or regarding a prior inconsistent statement
•    If  the Court gives leave to cross-examine, the cross-examination can go to credibility alone  s.38(3)
•    s103 applies to exclude the s102 where the evidence has substantial probative value
•    s106 applies to let you introduce evidence rebutting a denial by the hostile witness of the issues of credit you put to the witness.

Adam v The Queen [2001]
Facts: A Constable was murdered  Sako was arrested and charged with the murder.
•    Whilst he and his brother were charged he gave a detailed statement (favouring the prosecution’s case) as to what occurred,  implicating Adam in the killing, who was then charged  however by the trial Sako was saying that the contents of the statement was merely what he'd heard from other people, and thus became an unfavourable witness to the crown.
Issue: Can the prosecution cross-examine Sako on this prior inconsistent statement?

Held: Prima facie no, but given that the witness had made prior inconsistent statements, there is no doubt you can seek leave to cross examine under s38 with consideration to s192.
•    The evidence that Sako had given prior inconsistent statements was relevant to his credibility  the evidence of what he had said in those statements related not only to his credibility but also to other issues in the case. (credibility rule in s102 is not engaged)
•    Therefore it was unnecessary to consider the exception in s103.
•    The evidence was also directly relevant to facts-in-issue, and was therefore within the exception to the hearsay rule provided by s60.
•    The prosecution could thus examine him about his prior statements.

10.4 Supporting credit of a party’s own witness

Exception: re-establishing credibility
s108 (also see s102)
(1)    The credibility rule does not apply to evidence adduced in re-examination of a witness.
(2)    The credibility rule does not apply to evidence that explains or contradicts evidence adduced as referred to in s105, if the court gives leave to adduce that evidence.
(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;

•    This section must be read in association with s39 - which states that re-examination must be on issues that came up in the cross-exam.
•    Cases applying the Evidence Act indicate that often a prior consistent statement (in the form of a recent complaint) will be relevant to the facts in dispute and as such will not be caught by the rule against accreditation.
•    The exceptions developed in recognition that the circumstances either made the prior statement highly relevant or highly desirable  an alternative method of getting in a prior consistent statement is through the hearsay exception for documentary evidence s66.
•    The following cases show that prior consistent statements help to jury decide whether the witness is telling the truth.
•    Re-examination is done only in response to matters raised in cross examination to restore the witness’ credibility where it has been attacked in cross examination under the exceptions to the credibility rule in ss103-6.
•     You cannot use leading questions in re examination.  s102 doesn't apply to evidence of a prior consistent statement of a witness if evidence of prior inconsistent statement of the witness has been admitted or it is or will be suggested, expressly or impliedly, that evidence given by the witness had been fabricated or re-constructed or is the result of a suggestion and the Court gives leave (s192).

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Graham v The Queen (1998) (Suggestion of Fabrication.)
Facts: Graham was accused of sexually assaulting his daughter when she was ten  she didn’t report it until 6 years after the event.
•    Initially the prosecution attempted to have her first complaint, made some years after the event, admitted under s66 exceptions to hearsay, but this was denied because the event was not fresh in her memory.
•    They then attempted to have it admitted under s108  this requires that either there has been a prior inconsistent statement admitted or a suggestion that the evidence is fabricated  here the defence suggested the evidence had been fabricated.
Held: Whether, if admissible, the complaint becomes evidence of the truth of what is asserted is not relevant to the exercise of discretion to give leave under s108.
•    Rather, exercise of discretion under s108 depends upon the effect of the evidence on a witness’s credibility  unless the making of the complaint could be said to assist in the resolution of the witness’s credibility, evidence of the complaint would not be important and would only serve to lengthen the hearing.
•    In this case, the making of a complaint 6 years after the event does NOT assist in deciding whether she fabricated evidence  thus the evidence should not have been allowed in.

Papakosmas v R (1999)
Facts: This case concerned a sexual assault at a work Christmas Party  the victim told three of her colleagues straight after the incident.
•    The appellant developed an argument based on the common law rules on credibility in order to get evidence of the complaint admitted  said the rule was that evidence of immediate complaints in sexual assault cases is admissible even if it is relevant only to the credibility of the victim and not to a fact in issue.

Held: The argument was not successful due to the provisions of the Evidence Act  s55(2) in particular, abolishes the above rule  evidence of the complaint would affect the probability of the truth of the complaint.
•    However, if the defendant had alleged the victim fabricated the complaint, s108(3)(b) would allow admission of such evidence, assuming the court gave leave  and thus the evidence could then be used for a hearsay purpose.

R v Ngo (2001) (Applicability of s108)
Facts: Ngo was charged with the murder of Newman  the Crown wished to lead evidence from 2 accomplice witnesses who had been given indemnities
•    In particular, the crown wished to adduce evidence as to when they first went to the authorities, why they did so, and why they didn’t at that stage disclose all material information  that is, the prosecution wanted to attack its own witnesses so as to effectively take the sting out of the defence’s attack on the witnesses’ credibility.

Held: The witnesses could give evidence-in-chief that they were charged, and later went to the authorities and were given indemnities.
•    But, their motives for going to the police, their previous inconsistent or incomplete statements, or their reasons for such discrepancies between statements cannot be led as part of their evidence-in-chief, but only in re-examination.
•    The Crown (during examination-in-chief) should deal with credibility matters only in general terms and not proceed too far into the specifics of the differences in the various statements  they should merely highlight that there were differences and explanations for discrepancies would be given in due course(re-examination).

R v Whitmore (1999)
Facts:  Whitmore was convicted on one charge of indecent assault and one charge of sexual assault of a child.
•    The case against Whitmore relied entirely upon the evidence of the complainant which at voir dire, was objected to because it was based upon a recent complaint  it was noted that the complainant had not taken advantage of earlier opportunities to complain.
•    However, the Trial judge ruled that the evidence was admissible  the complainant on cross-examination did not suggest she had fabricated evidence and in giving evidence, Whitmore did no more than deny the events alleged.
•    Whitmore then appealed on the ground that the complaint was wrongly admitted.

Held: The denial of the events alleged, without more, does not necessarily suggest, expressly or implicitly, any fabrication.
•    The defendant did not suggest that the complainant had fabricated the allegations  he merely denied those allegations.
•    It was held that the evidence could not be admitted under s108(3)(b) and a re-trial was ordered.