The Credibility Rule: When, Why and How

Definitions 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. Plain language translation: How believable and reliable is (some or all of) the evidence from a witness? Credibility of a person is also defined. Essentially the same definition but applied to an out-of-court representation that has been admitted into evidence.

Evidence can be relevant for MORE than one purpose Evidence can be relevant to: Fact in issue (FII) Excl rule does not arise FII & Credibility Excl rule MIGHT apply Credibility only Excl rule WILL apply

Section 101A: definition of credibility (inserted in reaction to High Court decision in Adam) 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.

The effect of s 101A Where evidence is relevant to FII & CRED: If ADMISSIBLE for its FII purpose ↓ Can also be used for its credibility purpose (s 102 does not apply ie not caught by the exclusionary rule) OR If INADMISSIBLE for its FII purpose (eg due to hearsay) ↓ The only allowable use is for credibility purpose s 101A means the exclusionary rule (s 102) will apply ↓ Admissibility will require an exception to the credibility rule

Exceptions to the exclusionary rule Evidence that discredits: a witness during XX: s 103 an accused during XX: s 104 a witness by adducing evidence to rebut a denial of a credibility impeachment: s 106 by adducing evidence from an expert re credibility: s 108C Evidence that accredits: a witness/accused in re-ex & prior consistent statements: s 108 by adducing evidence from an expert re credibility: s 108C Credibility of non-witnesses whose representation has been admitted into evidence: for all people: s 108A for an accused (in addition to s 108A): s 108B

s 103 Exception: XX 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.

s 104 Further protections: XX the accused (1)Applies in addition to s 103. (2)Leave is to be sought to XX the defendant on a matter relevant to cred (3)Pros do not need leave if XX goes to whether the defendant: (a)Is biased or has a motive for being untruthful, or (b)Is, or was, unable to be aware of or recall matters to which evid relates, or (c)Has made a prior inconsistent statement. (4)Leave not to be given under (2) unless def presented evidence that: (a)tends to prove that a witness called by the pros has a tendency to be untruthful; and (b)is relevant solely or mainly to the witness’s credibility. (5)Ref in (4) does not include evidence of conduct in relation to: (a)events relating to the defendant’s prosecution; or (b)the investigation of the matter being prosecuted. (6)Leave not to be given in relation to a co-accused unless: … NB Section 192

S 106 Exception: rebutting denials with other evidence (1) The credibility rule does not apply to evidence relevant to a witness’s credibility, adduced otherwise than from the witness if: (a)in XX 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, & (b)the court gives leave to adduce the evidence. (2) Leave under (1)(b) is not required if the evid tends to prove the W: (a)is biased or has a motive for being untruthful, or (b)has been convicted of an offence, (incl foreign country), or (c)has made a prior inconsistent statement, or (d)is, or was, unable to be aware of matters that his/her evid 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. NB Section 192

Evidence that Discredits Evidence relevant (or admissible) only to credibility ↓ The exclusionary rule deems inadmissible: s 102 ↓ Admiss if the questions substantially affect assessment of the W’s cred: s 103 test Additional protections (and consequences) for accused: s104 ↓ Adduce rebuttal evid from another source if W denies etc the content of the assertion: s106

s 108 Exception: re-establishing credibility (1)The credibility rule does not apply to evidence adduced in re-examination of a witness. (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. NB Section 192

Evidence that Accredits Evidence relevant (or admissible) only to credibility ↓ The exclusionary rule deems inadmissible: s 102 ↓ During re-examination (RX) questions relating to credibility permissible: s 108(1) And/or Prior consistent statements (PCS) (RX or ex-in-chief): s 108(3)(b) ↓ PCS admiss to rebut a PIS or suggestion of lying ↓ NB Leave required for PCS (s 192)

In summary Does the credibility evidence exclusionary rule apply? Definitions of credibility/credibility evidence: Dictionary When the exclusionary rule will apply: ss 101A and 102 Does the evidence discredit? XX a witness: s 103 XX of an accused: s 104 Evidence to rebut the denial of a witness during XX: s 106 Evidence from an expert re credibility: s 108C Does the evidence accredit? Re-ex & PCS: s 108 Evidence from an expert re credibility: s 108C Does the evidence relate to a rep from a person who has not been called as a witness? All people except the accused: s 108A Additional protections for an accused: s 108B Does the adducing of the evidence require an application for leave? Factors for consideration: s 192