Topic 5 Credibility Notes PDF

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Topic 5 Credibility Notes Evidence that goes to credibility is inadmissible unless one or more of the exceptions can be applied

Topic Overview

Concept definition

Rule/Requirements 'the person's ability to observe or remember facts and events about which the person made the representation'.

Case/Statutes Dictionary Evidence Act 1995 (NSW)

Notes not the same as honesty. Two witnesses can give perfectly honest accounts of the same events; one (or both) of them can be totally wrong.

Credibility evidence is relevant to other evidence (collateral) - NOT directly to the facts in Issue. Therefore is ‘ancillary’ evidence.  

i.e. evidence on facts that are relevant to the primary facts in issue (other purposes) OR evidence on facts that are relevant to credibility

credibility of a witness is indirectly relevant to establishing facts in issue. BUT credibility of a witness can also be decisive of the facts in issue. It is a matter of degree, both in relation to relevance and to whether a fact is collateral. Whether a fact goes to witness credibility depends not only upon what the witness represents to the court, but also upon the nature of the party's case. Credibility of a witness

Means the credibility of any part or all of the evidence of the witness, and includes their ability to observe or remember facts and events about which the witness has given, is giving evidence

Dictionary Evidence Act 1995 (NSW)

Credibility of a person who has made a representation

If a representation has been admitted in evidence, the credibility includes their ability to observe or remember facts and events about which the person made the representation

Dictionary Evidence Act 1995 (NSW)

Leave

Applications for leave should be made in accordance with s 192 All questions of admissibility will invite a consideration of ss 135-137

Credibility evidence

definition

evidence relevant or admissible in relation to the credibility of a 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 (hearsay through to tendency)

s101A Evidence Act 1995 (NSW) Part 3.7

Adam v The Queen (2001) 207 CLR 96

S101A provision inserted in response to case where it said that s102 should be read literally, i.e. if evidence is relevant in some way other than credibility, even though inadmissible, it is not in breach.

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Relevance and admissibility

Relevant to credibility

So, you can get credibility evidence in as evidence through: a) arguing that the evidence is admissible for another purpose (a non-credibility purpose) and b) a credibility purpose (through s 101A(b)). In this way we are avoiding section 102. arguing that the evidence should be admitted under one of the exceptions. In this way we are using an exception to section 102.

s101A(b) Evidence Act 1995 (NSW)

evidence that is only relevant to credibility is credibility evidence, and can only be admitted under ss 102-108C.

s55(2) Evidence Act 1995 (NSW)

…evidence is not taken to be irrelevant only because it relates only to… the credibility of a witness = it is relevant because it is relevant to whether a witness can remember etc.

s102 Evidence Act 1995 (NSW)

Now also includes evidence relevant to the assessment of a fact in issue where it is not admissible as proof of that fact in issue

Palmer v The Queen (1998) 193 CLR 1

Consideration of the underlying policy reason will assist in remembering when the exclusionary rule applies

Evidence that is relevant to credibility and purposes other than credibility, but is only inadmissible for other purposes under parts 3.2-3.6 (e.g., as hearsay under s 59), IS credibility evidence and can only be admitted under ss 102-108 – BUT – once admitted for credibility purposes, can also be used for non-credibility purposes Relevant for non-credibility purposes

evidence that is relevant AND admissible for purposes other than credibility IS NOT credibility evidence (even if it is also relevant to credibility) BUT if this evidence is admitted under Parts 3.2-3.6 for purposes other than credibility, this evidence can also be used to establish credibility

Credibility rule

definition

Credibility evidence about a witness is not admissible.   

If the evidence is admissible for its relevance to a fact in issue, credibility rule will NOT apply. If the evidence is relevant only to credibility, credibility rule WILL APPLY and admissibility will require an exception to the credibility rule (s 102). If the evidence is relevant both to a fact in issue AND credibility but inadmissible for its fact in issue purpose (due to the hearsay rule or the tendency and coincidence rules) - exception to the credibility rule will be required (ss 101A and 102).

Rationale

trials and hearings should not be lengthened and the tribunal of fact distracted with extraneous evidence about witnesses i.e. may distract the fact finder to focus on the credibility of the witness as opposed to the facts in issue (take their eyes off the ball)

main categories

Three main categories of exceptions: 1) Evidence that discredits a witness: a. ss 103 (cross-examination); b. 104 (cross-examination of an accused); c. 106 (evidence rebutting a witness's denial of assertions concerning credibility); and 108C (expert evidence). 2) Evidence that accredits a witness: a. ss 108 (re-examination and prior consistent statements) and b. 108C (expert evidence). 3) Evidence about credibility of non-witnesses whose representation has been admitted into evidence a. (s 108A for all people except an accused person; s 108B for an accused).

Findings of fact should be based on evidence related to what happened on the day Exceptions

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s103 evidence adduced in crossexamination

concepts

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.

s103 Evidence Act 1995 (NSW)

where you want to attack the credibility of the opponent’s witness - you can pick at their bias, PIS - you need to attack the credibility of the witness; not them as an actual person

credibility rule does not apply if the evidence adduced in cross-examination if it could substantially affect the assessment of the credibility of the witness (i.e. witness can be crossexamined about credit matters where it can have a real bearing on the assessment of that credit)

Bickel v John Fairfax & Sons [1981] 2 NSWLR 474

Focus on capability in the probative value definition links to what the jury ‘might’ find – not is ‘likely’ to find. Same with test of rationality

MUST have substantial probative value (normal definition applies - “the extent to which the evidence could rationally affect the assessment of probability of the existence of a fact in issue”.)

Bickel wrote a book during the cold war; someone wrote a negative view on it; he sued the person who made those statements; questions about his communist beliefs not allowed e.g. if a witness has previously lied under oath, it is likely to come under the exception and been admitted as evidence

The scope of the exception rule is determined based on the facts of the case and the specifics of the credibility evidence. The following areas might meet the s 103 exception:       

Ability to observe or remember (e.g. lighting, obstructions, noise and the witness's physical and mental capacities, such as intoxication, stress levels, age, eyesight etc). Motivations to lie (including bias). Evidence of a false representation when under an obligation to tell the truth. Certain prior convictions relating to dishonesty or perjury. Other instances of lies or dishonesty (NB not all instances of dishonesty will be sufficient see R v Lodhi re the scale of dishonesty). Prior inconsistent statements, inconsistencies while giving evidence and with other witnesses. Evidence of coaching.

TEST - substantially affect the assessment of the credibility of the witness - MUST have had the potential (capability) to have a “real” or a “significant” bearing on the assessment of the accused’s credibility, particularly that credibility - as opposed to whether it is likely to do so specific considerations: 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 Shamouil (2006) 66 NSWLR 228

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examples

The probative value of the evidence must be assessed by taking the evidence at its highest. Ie. when determining the question, the court should presume the witness will agree with the questions being put in cross-examination

R v Sood [2007] NSWCCA 214

The test will be satisfied if the credit of the witness cannot be determined adequately without regard to the evidence.

Slack [2003] NSWCCA 93

Evidence that a claimant for workers’ compensation had been convicted for attempting to raise money from her bank on the basis of a forged document has substantial probative value = admissible.

Commercial Union Workers’ Compensation (NSW) Ltd v Clayton [2000] NSWCA 283

Conviction of a criminal offence involving serious dishonesty has substantial probative value in relation to a witness’s credit

For an allegation to be able to put as to credit, it must be such that if the allegation was accepted by the witness it would logically weaken confidence in the witness' veracity as a witness of truth.

R v El-Azzi [2004] NSWCCA 455

Evidence of corruption of a police officer – held it has substantial probative value

Fishing expeditions

s104 - crossexamination as to credibility

The Accused as witness

MUST be a legitimate forensic purpose for which the subpoena for records was issued — that it is “on the cards” that the documents sought would materially assist the party issuing the subpoena.

R v RPS unreported NSWCCA 1997 Sankey v Whitlam (1978) 142 CLR 1

inappropriate to permit a subpoena which “does little more than trawl for documents” which may be used to obtain documents for the purpose of impeaching the credit of a witness.

R v Saleam (1989) 16 NSWLR 14

offers additional protections for an accused person giving evidence and applies in addition to s103. Only applies where the defendant has elected to give evidence.

s104 Evidence Act 1995 (NSW)

applies only to credibility evidence in a criminal proceeding and so applies in addition to section 103.

Where the witness is the accused, further restrictions are placed on cross-examination regarding credibility. Strong presumption AGAINST admission of prior convictions. So, as reflected in s102, prior convictions are NOT admissible. Rationale

Application of Leave of the court

Because of the prejudice of guilt which is thought to ensue…

Hall v Braybrook [1956] HCA 30

“evidence is relevant to the issue but is excluded for reasons of policy and humanity; because, although by admitting it you might arrive at justice in one case out of a hundred, you would probably do injustice in the other ninety-nine.”

R v Rowton 12 (1865) Le. & Ca. 520 [169 E.R. 1497]

Accused MUST NOT be cross-examined about a credit matter unless the court gives leave – but there are exceptions.

s104(2) Evidence Act 1995 (NSW)

Combined effect of s103/104 is that the defendant can be cross-examined about credibility WITHOUT leave being granted

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exceptions:  Is biased or has a motive to be untruthful (interest beyond the normal interest that a defendant has in not being found guilty)  Is/was unable to be aware of or recall matters to which his or her evidence relates (e.g. being drunk) or  Has made a prior inconsistent statement. Leave MUST be granted for the defence to attack the honesty of the prosecution witness on the basis of events that ARE NOT related to the offence in question. (about avoiding gratuitous attacks on witnesses).

s104(3) Evidence Act 1995 (NSW) Robinson v R [1991] HCA 38

R v Davis [1975] 1 WLR 345

But does allow tit-for-tat credibility attacks if the accused does give evidence – opens the door for prosecution to do the same

s104(6) Evidence Act 1995 (NSW)

the manner of cross-examination of prosecution witnesses had "thrown wide open" an opportunity for extensive crossexamination of the accused. Meaning that the discretion to grant leave for 104(3)-(6) is very broad

Leave CANNOT be given for events related to the offence in question. Leave also required for evidence by the accused against a co-accused. Doesn’t need to be related evidence – can be ANY evidence contrary to the interests of the accused (even something as simple as a denial of the charge – implying one of the other/s had to have done the offence) In situations where the prosecution is required to seek leave, the court must not grant leave unless evidence has been adduced by the defence and been admitted that:  Tends to prove a prosecution witness has a tendency to be untruthful or be otherwise adverse to their interest; and  Is relevant solely or mainly to the witness's credibility.

R v El-Azzi [2004] NSWCCA 455

i.e. if the defence case has raised issues of credibility about a prosecution witness the accused will lose some protection regarding their credibility if he or she chooses to give evidence. an attack on the credibility of a prosecution witness could lead to the prosecution being allowed to adduce evidence that accredits the witness in accordance with s 108. practitioner insurance scam; she volunteered to open up her own good character; the prosecution was allowed to put in evidence where she got in trouble by the law society = this evidence shouldn’t have been let in the crown has no automatic right to cross-examine the D just because they raised their good character = this is something leave has been granted for (need for transparency) s106 evidence in rebuttal of denials

rebutting denials by other evidence

The Finality Rule The answers of a witness given under cross-examination on COLLATERAL issues are to be taken as final. The answer CANNOT be contradicted by calling further evidence UNLESS an exception applies, even if the witness’s answer is incorrect. Doesn’t apply to facts in issue – only collateral issues

Stanoevski v The Queen (2001) 202 CLR 115 Matusevich v The Queen (1977) 137 CLR 633 s106 Evidence Act 1995 (NSW) Piddington v Bennett and Wood Pty Ltd [1940] HCA 2

For when you want to lead evidence from another witness about the credibility of a prosecution witness.

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requires the court to grant leave

1. Credibility rule does NOT apply to evidence adduced via another witness as long as: a) in cross-examination of the witness: I. the substance of the evidence was put to the witness, & II. the witness denied, or did not admit or agree to, the substance of the evidence, AND b) the court gives leave to adduce the evidence. 2. Leave under subsection (1) (b) is not required if 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 Aust law or a law of a foreign country, to tell the truth. Exceptions

  

  Rationale

 

s108 -evidence to re-establish credibility

Evidence that accredits

Previous convictions Establishing bias (any matter that may make witness hostile to the opponent or favourable to the party calling them) or reputation for untruthfulness Ability to observe or remember (e.g. lighting, obstructions, noise and the witness's physical and mental capacities, such as intoxication, stress levels, age, eyesight etc (medical evidence can be given in rebuttal – s66A) prior inconsistent statement knowingly or recklessly making a false representation while obliged to tell the truth

Palmer v The Queen (1998) 193 CLR 1 Nicholls v the Queen [2005] HCA 1

to prevent the court’s time being wasted in establishing issues that are not material to the case. Recognises it would be unfair to ambush a witness with questioning on issues that he had not anticipated.

Once a witness’s credibility has been attacked the party who has called the witness is permitted to ask questions solely relevant to re-establishing that witness’s credibility.

s108 Evidence Act 1995 (NSW)

when you want to bolster or re-establish the credibility of your own witness after they have been attacked during re-examination

requires the court to grant leave ss108A/108B deal with admission of credibility evidence about a person who has made a previous representation but who is not a witness. credibility rule does not apply to evidence adduced in re-examination of a witness. Needs to be read in conjunction with s39 (scope of re-examination)

s108(1) Evidence Act 1995 (NSW)

Is used when the witness has already been cross-examined about credibility and there is a need to clarify their response

A prior consistent statement is a matter that goes to credibility. If the prior consistent statement is inadmissible for its ‘fact in issue’ purpose, it may become admissible for its credibility purpose if s 108(3) applies.

s108(3) Evidence Act 1995 (NSW)

No requirement that the prior consistent statement be made before or after the prior inconsistent statement. But if it can’t be that helpful to credibility regardless, it is less likely to get leave granted

will apply when evidence of a prior inconsistent statement has been admitted, or the witness's credibility has been impugned on the basis that the witness has fabricated or re-constructed their evidence, or their evidence is the result of a suggestion.

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Example

R v Cassar [1999] NSWSC - Cassar said he saw the people push and stab people 7 months after the event 352 - when the event happened, he didn’t say anything - he didn’t say anything at the time as his family was threatened - so basically, we have 3 situations: = if it is relevant to just credibility, it is inadmissible = if it is relevant f...