Assessment 2 - Part 2 PDF

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Research assignment on admissability of evidence ...

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Assessment 2 - Part 2 Introduction Credibility Evidence relates to the witness or another person, who is required to give relevant evidence to the court. Under s101A of the Evidence Act, credibility evidence is relevant when it affects the assessment of credibility of the witness or person giving the evidence. Credibility also involves the witness’s ability to be able to observe or remember facts and events to which the witness has given or is going to give. In terms of credibility evidence and how that can be used in court, under s102 of the “credibility rule”, credibility evidence about witnesses is not admissible. However, there is an exception under s103 (1) which is that the credibility rule does not apply to evidence that has been provided in the cross-examination of the witness, if the evidence can affect the assessment of the credibility of the witness. The exception can only be applied if it also follows s55 of relevance. Section 55 of the Evidence Act refers to evidence only being accepted if the evidence is going to directly or indirectly affect the existence of the facts that have been provided. If this is not the case, the exception under s103 (1) cannot be applied. This exception is also only valid if it follows the principles of part 3.1 s56 of the Evidence Act. Evidence can only be admissible within the proceeding if the evidence is relevant to the case. If it’s not relevant, then the exception does not apply in relation to crossexamination. Issue The issue relates to the evidence that has been provided by Karen in relation to the charges of Darryl for the burglary and murder of Silvana. Karen, who is Darryl’s current partner, provided a different time to Darryl as to when he left the house. Although Karen has provided the correct time, because both of them have given different times, it makes the credibility of the evidence harder to prove for the defence party. The times when Darryl left the house are also very crucial, because Silvana’s death happened not long after 9pm. If they were to go with Darryl’s time, which was that he left the house at 10pm, then it’s not possible for him to have committed the crime, however, if they were to go with karen’s time, ( is the truth) which was that Darryl left the house at 7pm, then it could’ve been very possible for Darryl to have committed the offence. This demonstrates how important evidence is towards a case and how different things that are said by different people, is very crucial towards the credibility of the evidence and case. In relation to what Karen said to Mei, the issue here is false evidence. Karen was going to change her times for Darryl and say that it was instead 10pm. Not only is it bad for Karen to lie about what actually happened, it would also require Mei to do the same. Giving false information is an offence when it comes to court. The form of credibility that the prosecution party could

seek in order to refute Karen's testimony would be s103 (1) of the Evidence Act 2008. Relevant principles/provisions When looking at the issue in relation to Karen and deciding to give false information or to change their mind on things they have said, the form of provision that the prosecution can use against Karen in the trial would be the first exception to the credibility rule. The first exception is under section 103 (1) of the Evidence Act 2008, relating to where a witness’s credibility may be taken to cross-examination of the witness if the evidence could substantially affect the assessment of the credibility of the witness. Evidence designed to discredit a witness can be adduced in the cross-examination in the form of leading questions. The link between this scenario and section 103(1), is the prior inconsistent statements. Section 43(1) which refers to prior inconsistent statements of witnesses, can also be used to test Karen's statements that she made. Under s43, a witness is able to cross-examine about a prior inconsistent statement. Prosecution can also cross-examine the defendant’s inability to have observed or recalled manners about the evidence, which comes under section 104(3)(B). Another provision is section 106(2), which allows the rebuttal to be led to counteract denials of a witness in cross-examination without requirement for leave of the court case. The credibility rule does not apply to evidence that’s relevant to the witness’s credibility if they have been found to be biased or have a motive for being untruthful. Application The prosecution are able to seek adduce by Karen for several reasons, in relation to the provisions. Under section 103 (1), the prosecution party is able to cross-examine Karen due to prior inconsistent statements. With Mei coming forward and telling the police that Karen was at her house at 8:30pm and that Karen has now changed her mind and said that Darryl left the house at 10pm, the evidence becomes admissible in court because it's relevant to the case and the hearing. Due to Karen changing her mind on the times when Darryl left home, under section 43(1), the prosecutors are able to cross examine Karen about why she gave prior inconsistent statements. In terms of the credibility, by Karen giving different times, it makes it very difficult to use, however, the evidence can still be admissible. This evidence is admissible as it relates to the facts of the case and by Karen changing the times to suit the defendant, it can determine the trial of the case. The prosecution party can also adduce Karen’s testimony because under section 104(3), Karen has not been able to recall manners relating to the case and has made many changes to what she remembers. This credible evidence can be admissible to the court and used against the defendant. The prosecution party can also seek to adduce Karen's testimony through the rebuttal of section 106(2). The party can use this against the defendant by proving that Karen was biased to Darryl, her partner. This is evidence through clearly changing her times as to when Darryl left home and also by rejecting to be a witness for the prosecution party, so that she could be one for the defence. Conclusion After looking at all the provisions and applying them to the case, it’s evident that the prosecution

would be able to meet the requirements to adduce the credibility evidence to refute Karen's testimony. Karen has clearly been biased towards the defendants (section 106[2]), made prior inconsistent statements (s43 [1]) and was able to prove that she couldn't remember matters relating to what Darryl said (section 104[3]). By the prosecution being able to use these three provisions, it also proves that the credibility of Karen’s evidence can be refuted and that due to the knowledgeable mistakes that were made by karen, the evidence through the crossexamination can be admissible in court....