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ADMISSIBILITY – CREDIBILITY EVIDENCE PAGE 1 – INTRODUCTION TO CREDIBILITY Part 3.7 of the Evidence Act deals with “credibility evidence”. As with several of the other purposebased rules, it provides that credibility evidence is not admissible unless it falls within an exception. It is substantially different to its common law predecessors. Section 102 provides that: “102 The credibility rule Credibility evidence about a witness is not admissible.” The Dictionary defines “credibility” as follows: “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.” “Credibility evidence” is the term used in most of the provisions of Pt 3.7. It is further defined in s 101A, as follows: “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. Notes. 1 Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted. 2 Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.”

One effect of the Dictionary definition is that “credibility” for the purpose of Pt 3.7 includes both the concept of truthfulness, and concepts relating to a person’s ability to overserve or remember facts and events. The latter concepts are, in other contexts (including the case law relating to probative value) often called ‘reliability’: see Dupas v The Queen (2012) 218 A Crim R 507 (extracted at [11.40]). Sections 103, 105 and 108 provide for exceptions to the rule in s 102, relating to cross-examination, rebuttal of denials, and re-establishing credibility, respectively. Section 104 (and s 105, in the

Commonwealth Evidence Act) provide for additional protections that apply in conjunction with s 103. Section 108C relates to the credibility of expert witnesses. The rule in s 102 relates only to witnesses. Sections 108A and 108B deal with credibility evidence relating to the credibility of makers of hearsay statements who are not witnesses, in terms analogous to those of s 103 and 104. Section 108C deals with the credibility of expert witnesses. There is also an exception in s 110 relating to character evidence, which will be dealt with in a later module.

PAGE 2 – TO WHAT EVIDENCE DOES THE CREDIBILITY RULE APPLY? We have just seen that “credibility” is defined in the Dictionary broadly, to include both the truthfulness and the reliability of evidence of a witness or a statement by another person. Issues that might come within those concepts include, for instance:       

whether witnesses are lying; whether they are biased (which might affect their observations, memory, and testimony); any motive to be untruthful (but on this see further below); their opportunity to observe the events the subject of their testimony; their powers of perception and memory; any inconsistencies in their evidence; or any prior consistent or inconsistent statements.

However, the application of the rules in Pt 3.7 is also subject to the operation of s 101A, which defines “credibility evidence”. Section 101A was inserted in response to the following case, which we have already looked at in the context of relevance. [Case box Adam v The Queen (2001) 207 CLR 96 (extracted at [11.50]) A witness, Thaier Sako, and the defendant, Gilbert Adam, were involved in an altercation which resulted in the death of a police officer, Constable Carty. Prior to the trial, Sako made statements to the police that tended to support the prosecution case against Adam. At trial, he gave different evidence. He was cross-examined under s 38 as a hostile witness, using the prior inconsistent statement made to police. The trial judge directed the jury that they could use the police statements both as evidence about the credibility of Sako’s in-court statements, and for as proof of the facts they asserted (that is, a hearsay purpose). Section 102, at the time, provided that “[e]vidence that is relevant only to a witness’ credibility is not admissible”, and there was no s 101A. The appellant argued that evidence would be relevant “only” for a credibility purpose if it was not admissible for any other purpose. Applying the hearsay provisions to the evidence, it was not admissible for a hearsay purpose. It followed that the evidence was relevant only for a credibility purpose and was therefore excluded for that purpose under s 101A. The High Court rejected that argument. As we saw in a previous module, the High Court started by finding that the prior inconsistent statement was relevant both to Sako’s credibility and for a hearsay purpose. It then interpreted s 102 (as it then stood) literally, to provide that evidence that is relevant for any other purpose is not evidence to which the credibility rule applies, regardless of whether that evidence is admissible for the other purpose. The effect was that the evidence was admissible for a credibility purpose. Further, the fact that the evidence was admissible for a credibility purpose made it admissible for a hearsay purpose as well under s 60, even though, viewing hearsay in isolation, it would have been inadmissible. After Adam, s 102 was amended and s 101A was inserted, with the effect that the legislation now conforms to the approach proposed by the appellant. Note that, under the Evidence Act as it now stands, the Crown could probably still get Sako’s evidence in for a credibility (and then hearsay) purpose by operation of s 103, considered below.

The result of ss 101A and 102 as they now stand is that if, looking first at the non-credibility purposes for which evidence might be used, you can get it in, then you can use the evidence for a credibility purpose. If, however, it is inadmissible for all non-credibility purposes to which it might be relevant, because of the operation of a provision of Pts 3.2-3.6, s 102 will apply to make it inadmissible for a credibility purpose as well (assuming it does not come under an exception to the credibility rule). Sections 60 and 77 do not operate to make the evidence admissible for a hearsay or opinion use in these circumstances, because they apply only to evidence that is “admitted” for another purpose. The approach is perhaps most easily understood as a flow chart. Is evidence about credibility “credibility evidence” to which Pt 3.7 applies? Is the evidence relevant only to the credibility of a witness or another person?

Yes

The evidence is “credibility evidence” under s 101A(a) and Pt 3.7 applies

No, another purpose as well Is the evidence admissible for the other purpose?

No (because of Pts 3.23.6)

The evidence is “credibility evidence” under s 101A(b) and Pt 3.7 applies

Yes The evidence does not fall under s 101A(a) or (b) and Pt 3.7 does not apply.

As you can see, s 101A (and other provisions of the Evidence Act) relies heavily on a distinction between relevance for a credibility purpose and relevance to prove a fact in issue. McHugh J, in dissent in the common law case of Palmer v The Queen, was critical of that distinction, arguing that the probability of the evidence as it relates to the fact in issue being true cannot logically be isolated from the credibility of the witness giving the evidence. He considered that the main purpose of drawing the distinction is case management – it is to prevent a trial being burdened with side-issues, some of which will have minimal probative value. Do you agree? As you consider the provisions of Pt 3.7, consider whether you think that they might have other purposes as well.

PAGE 3: EXCEPTIONS ALLOWING CREDIBIILTY TO BE ATTACKED IN CROSS-EXAMINATION General exception (s 103) Section 103 provides: “103 Exception: cross-examination as to credibility (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.” Section 108A (link) provides for a test in the same terms to apply for admission of credibility evidence about a person who made a hearsay statement that is in evidence, but will not themselves be called to give evidence. Note the example of the operation of s 103 extracted at [11.60], State Rail Authority of NSW v Brown (2006) NSWLR 540, discusses a previous version of s 103, which required that the evidence had “substantial probative value”, rather than that it “could substantially affect the assessment of the credibility of the witness”. However, that amendment did not implement a substantive change to the provision, but rather brought the language more closely in line with the existing interpretation: see R v El-Azzi [2004] NSWCCA 445 at [183]. Additional protection in relation to cross-examination of a criminal defendant about credibility (s 104) Read s 104 closely (link). Its effect is that cross-examination of a criminal defendant about a matter relevant to the defendant’s credibility requires leave: s 104(2), unless it is about one of the subjects listed in s 104(3), being bias, inability to recall, or a prior inconsistent statement. If leave is required, it may only be granted if the defence has made an attack on the credibility of a prosecution witness. Specifically, leave must not be granted unless: 



evidence has been adduced by the defendant that tends to prove that a prosecution witness has a tendency to be untruthful and is relevant solely or mainly to that witness’ credibility: s 104(4); and that evidence does not relate to the offence of which the defendant is being prosecuted, or the investigation of that offence (that is, it must be evidence going to show that the witness is a dishonest person for some reason other than the fact that they are allegedly lying about the events the subject of the charge): s 104(5).

In determining whether to grant leave, the trial judge must have regard to s 192 (link), which includes a consideration, in s 192(2)(b), of unfairness. Section 104(6) deals with the cross-examination of one co-defendant by another.

It is important to note that s 104 applies only where cross-examination on credibility is permitted under s 103 – if the requirements of s 103 are not met, there can be no such cross-examination in any case. In addition, s 104 (like ss 102-3) applies only to “credibility evidence” as defined in s 101A, and therefore does not apply to prevent cross-examination that goes to both credibility and another purpose. For that reason, cross-examination about internal inconsistencies or other weaknesses in a defendant’s testimony will generally not be subject to s 104, because that evidence will be relevant both to the credibility of the testimony and directly to the defendant’s guilt or innocence. [Example box A defendant in an aggravated sexual assault case contends that the means by which the complainant alleged he held her down, using his left hand, was impossible and that she was not giving truthful evidence. That was said to be because he had injured his left hand and, at the time of the offence and continuing to time of the trial, it was still significantly disabled. 

The Crown led evidence of surveillance camera footage and evidence of corrective services officers that the defendant had been doing push-ups in his cell using his left hand, to prove that he was lying about his incapacity. That evidence was directly relevant to a fact in issue, being the defendant’s capacity to commit the offence, as well as to the credibility of the defendant’s statement that his hand was too incapacitated at the relevant time. It followed that the evidence elicited in cross-examination would not be “credibility evidence” under s 101A, and would not require that leave be sought or given under s 104 for it to be used to impugn the defendant’s credibility. (Thus far this is derived from R v Spiteri (2004) 61 NSWLR 369)



What if the Crown led evidence that the defendant had previously been the subject of proceedings relating to a fraudulent personal injury claim made on the basis of a non-existent injury? Or if, in those proceedings, he had been recorded to have said “you can get out of anything by faking an injury”? The evidence of the proceedings or the statement would be relevant only to credibility, and could be raised in cross-examination only if ss 103 and 104 applied. The statement, in particular, would likely damage the applicant’s credibility enough to pass the test in s 103. If so, and if the defendant made a general attack on the credibility of the complainant, it would be open for the trial judge, on the application of the factors in s 192, to give leave for the prosecution’s credibility evidence to be admitted.

Note that s 108B (link) is in the same terms as s 104, but applies to credibility evidence of a previous representation made by a defendant who is not giving evidence as a witness. Exception for evidence to rebut denials given in cross-examination (s 106) Section 106 provides for the admission of evidence going only to credibility where a witness, in cross examination, has denied the substance of other evidence put to him or her: s 106(1). Like s 104, s 106 has a leave requirement for the adducing of credibility evidence: s 106(1)(b), and also lists circumstances in which no leave is required: s 106(2).

The circumstances in which credibility evidence that has been denied by the witness in crossexamination may be admitted are where 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.” [Case box – Col v The Queen [2013] NSWCCA 302 (extracted at [11.90]) The appellant was charged with causing grievous bodily harm with intent. It was the Crown case that, after a fight with his de facto partner, he intentionally doused her with methylated spirits and set her alight. The victim made out-of-court statements to that effect a number of times, including in a sworn police statement. However, she subsequently said that those statements were not true, and denied them in court. She had been called by the prosecution and was cross-examined as an unfavourable witness under s 38. She admitted making the statement, but said that it was not true. The relevant question for the Court of Criminal Appeal was whether the statement to police could be admitted. The Court appears to have dealt with that question on the assumption that the statement did not fall within an exception to the hearsay rule (except s 60). The Court held that, because it substantially affected the assessment of the credibility of the victim, the statement itself was admissible under s 103. (Odgers thinks that was wrong. Arguably, once a witness has admitted the making of a prior inconsistent statement, the admission of the statement itself cannot further affect the assessment of her credibility, and leaves no room for the operation of s 106.) In any case, the Court in Col also found that the statement was admissible under s 106, because the witness denied the substance of the statement: s 106(1), and in those circumstances cross-examination on a prior inconsistent statement does not require leave: s 106(2)(c). Recall that s 43(2) (link) imposes procedural requirements on cross-examination on prior inconsistent statements. That section applies where the witness does not admit making the statement. In Col, the victim did admit making the statement (but denied its truth). At [36], a submission that s 43(2) acts to prevent the admission of a prior inconsistent statement in those circumstances was rejected: “In so far as the victim acknowledged that she had made the statement, but that she was merely relying upon what others had told her, it may be accepted that she was acknowledging that her police statement was inconsistent with her evidence at trial. However, that does not of itself render the statement inadmissible. As Barr J explained in R v Aslet [2006] NSWCCA 49 (Spigelman CJ and Howie J agreeing) at [76]: [Under the Evidence Act] there is a purpose in tendering such statements beyond any attack on credibility, namely proof of the facts asserted: s60. Nothing in s43 is

directed to the admissibility of any prior inconsistent statement to prove the truth of its assertions. All subs(2) does is ensure that a witness who is about to be attacked on credit is fairly dealt with. Nothing in s43 purports to limit the effect of ss38, 103 or 60.” Is it permissible to cross-examine the defendant on why the complainant (or another witness) would lie? This type of evidence may not be relevant at all, because the fact that the defendant does not know why the complainant would be lying has a very limited logical connection to whether the complainant is in fact lying: see the majority judgment in Palmer v The Queen (1998) 193 CLR 1 (extracted at [11.30]). If the evidence is not relevant, it will be inadmissible under s 56. Generally speaking, this evidence would be relevant, if at all, only to the complainant’s credibility. Section 102 would apply, and the only applicable exception would be s 106. Leave would need to be granted under that section for the question to be asked. That leave would rarely, if ever, be granted, because of the minimal probative value and very substantial unfair prejudice to the defendant. This was explained in Picker v R [2002] NSWCCA 78 at [29], a sexual assault case, as follows: “The cross-examination under challenge was unfair and sought to and probably did create illicit prejudice against the appellant. He could not be expected to know what she believed. Lying, fabrication and making up all have the connotation that she was acting basely. All he knew was that her evidence was incorrect. What he suspected or believed was not relevant in the context in question. The prosecution was seeking to disparage, hold up to criticism and capitalise upon the appellant’s beliefs as to the evidence of the complainant. They were not relevant and deflected attention from the critical issue, namely, whether the jury were satisfied as to the truth of her evidence beyond reasonable doubt.” It is, however, more likely that a prosecutor would be permitted to cross-examine an accused to establish that a motive that is suggested by the defence for the complainant (or any other witness) to lie is incorrect.

PAGE 4 – EXCEPTIONS ALLOWING CREDIBILITY TO BE SUPPORTED Section 108 provides for two exceptions to s 102 which allow credibility evidence to be led to re-establish credibility. Section 108(1) The first is s 108(1), which provides: “(1) The credi...