LAW OF EVIDENCE LPAB – Summer 2016/2017 Week 10.

LAW OF EVIDENCE LPAB – Summer 2016/2017 Week 10

Admissibility - credibility

KOP Ch 11 8.1 Credibility rule EA s 101A-108C Palmer v The Queen (1998) 193 CLR 1 (KOP [11.30]) Hargraves v The Queen (2011) 282 ALR 214 (KOP [11.180]) 8.2 Attacking credibility of other side's witness EA ss 43-44, 101A, , 106, 192 State Rail Authority of NSW v Brown (2006) 66 NSWLR 540 (KOP [11.40]) Col v The Queen [2013] NSWCCA 302 (KOP [11.90]) 8.3 Attacking credibility of party's own witness Adam v The Queen (2001) 207 CLR 96 (KOP [11.40])

8.4 Supporting credibility of party's own witness EA ss 102, 108, 108C R v Ngo (2001) 122 A Crim R 467 (KOP [11.110]) R v Whitmore (1999) 109 A Crim R 51 (KOP [11.120]) Nikolaidis v The Queen [2008] NSWCCA 323 (KOP [11.130]) Graham v The Queen (1998) 195 CLR 606 (KOP [7.150]) Dupas v The Queen (2012) 218 A Crim R 507(KOP [11.140]) M A v The Queen [2013] VSCA 20 (KOP [11.150]) De Silva v The Queen [2013] VSCA 20 (KOP [11.160])

PART 3.7 – CREDIBILITY KOP Chapter 11 Section 101A - Credibility evidence Section The credibility rule Section Exception: cross-examination as to credibility Section Further protections: cross-examination as to credibility Section Further protections: defendants making unsworn statements Section Exception: rebutting denials by other evidence Section Exception: re-establishing credibility Section 108A - Admissibility of evidence of credibility of person who has made a previous representation Section 108B - Further protections: previous representations of an accused who is not a witness Section 108C - Exception: evidence of persons with specialised knowledge

102 - The credibility rule Credibility evidence about a witness is not admissible. Notes : 1 Specific exceptions to the credibility rule are as follows: • evidence adduced in cross-examination (sections 103 and 104) • evidence in rebuttal of denials (section 106) • evidence to re-establish credibility (section 108) • evidence of persons with specialised knowledge (section 108C) • character of accused persons (section 110) Other provisions of this Act, or of other laws, may operate as further exceptions. 2 Sections: 108A and 108B deal with the admission of credibility evidence about a person who has made a previous representation but is not a witness.

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: is relevant only because it affects the assessment of the credibility of the witness or person, or is relevant: because it affects the assessment of the credibility of the witness or person, and 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.

"Credibility" is sort of defined in the Dictionary: 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 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.

Evidence affects assessment of credibility whether it supports their credibility or tends to discredit them. This concept applies to evidence which bears on the reliability of witness generally as well as the reliability of particular testimony of witness. Matters bearing on credibility include: truthfulness, intelligence, bias, motive to be untruthful, opportunities of observation, reasons for recollection or belief, powers of perception and memory, special circumstances affecting competency, prior statements consistent / inconsistent with testimony, internal inconsistencies. (But in relation to external factors what effect does the decision in IMM v The Queen [2016] HCA 14 have? And/or Richard Lancaster’s analysis of that decision.

Evidence affecting credibility: Certain prior convictions and certain prior dishonest conduct by the witness; The veracity of the witness, including a bias he or she may have that is relevant to the proceedings, a motive to lie, and evidence of making of false representations made knowingly or recklessly while under a legal or moral obligation to tell the truth; Evidence of coaching of the witness; The witness‘s intellectual capacity, his or her capacity to remember matters, or certain matters and his or her inability to be aware of or recall matters relating to evidence (due to age, illness or injury physical attributes etc);

Evidence affecting credibility: Evidence of the witness having made a prior inconsistent or consistent statement, giving inconsistent accounts during the giving of evidence , creating ambiguity in his or her evidence, giving an account that is inconsistent or contradicts other witnesses‘ accounts; Evidence of circumstances surrounding any observations that may affect the accuracy of his or her evidence (lighting, obstructions, noise etc); (Again, what about IMM?) and The demeanour of the witness while giving evidence.

The statutory definition is broader that the common law concept of “credit” which focused on ‘truthfulness’ of the witness, rather than the witnesses ‘believability.’ In NSW it has been held that credibility covers only the reliability of the witness, but not also evidence that questions the reliability of the testimony given by the witness (which would include contradictory evidence). Peacock v R (2008) 190 Crim A R 454 However in Dupas v R, the Victorian CCA did not follow this narrow approach and held that credibility includes the credibility of the evidence given by the witness.

So, if the evidence is relevant only for credibility - it is credibility evidence falling within s 101A(a). If it is relevant for another purpose, you have to consider s 101A(b) - If it is admissible for that other purpose, it is not credibility evidence (and you don't need to comply with Part 3.7). If it is not admissible for that other purpose, it is still credibility evidence (but only if that inadmissibility flows from Pts i.e. ss 59, 76,91,97,98). You then have to comply with Part 3.7.

Adam v The Queen (2001) 207 CLR 96 (KOP [11.40]) A group of young men were seen attacking a policeman in a hotel carpark who was also stabbed and died. Adam was one of the men charged with the murder. The Crown called Sako who was present during some of the events. Sako gave several recorded police interviews. 10 Weeks after the crime, he gave evidence in an ERSIP that implicated Adam. However, at trial he gave evidence harmful to the Crown case (didn’t see Adam). Crown obtained s 38 leave to attack his credibility. Sako agreed that he had made the PIS, but said that he had repeated what he was told at the time. Trial judge admitted the evidence and told the jury that the Crown case depended upon the jury believing the previous statements of Sako rather than his in court evidence.

Adam v The Queen (2001) 207 CLR 96 (KOP [11.40]) The issue on appeal was whether the judge had erred in admitting Sako's statements to police as evidence of the truth of their contents (i.e. evidence of what occurred that night). Appellant argued they were not admissible under the exceptions to hearsay rule or credibility rule. At the time, s 102 provided: “Evidence that is relevant only to a witness's credibility is not admissible”, And there was no s101A. Firstly, it was found that the evidence that Sako had given prior inconsistent statements was relevant to his credibility. It was also found that the trial judge was right to conclude that s 38 was satisfied, and therefore correctly gave leave to the prosecution to cross-examine Sako. The evidence was also not caught by the hearsay rule because of the exception to that rule provided by s 60 (i.e. in for the credibility purpose, therefore s 60 allowed it to be used for the hearsay purpose – to prove the truth of the statement)

Adam v The Queen (2001) 207 CLR 96 (KOP [11.40]) Was the evidence correctly received as truth of its contents? Was it relevant? The Court accepted McHugh J in Papakosmas - in determining relevance you do not consider whether the jury would or might accept it. You assume it is accepted. Plainly the PIS was relevant to whether Sako was to be believed. But the evidence related to more than that. Also relevant to facts in issue – was Adam there? Was it admissible for truth of its contents? Unless one of hearsay exceptions applied, it could not normally be used for the hearsay purpose. The Court held that it was relevant for both its hearsay purpose (to prove the truth of the statement) and for the credibility purpose. The appellant argued that credibility evidence was evidence which was not admissible for anything other than credibility purpose, i.e. even if relevant for another purpose, it is still “credibility evidence” (and therefore inadmissible) if it is not admissible for that other purpose (admissible v relevant for the other purpose).

Adam v The Queen (2001) 207 CLR 96 (KOP [11.40]) The High Court rejected the appellant’s argument and interpreted s 102 literally - if evidence was relevant for a credibility purpose and relevant (but not necessarily admissible) for another purpose (e.g. hearsay use to prove the truth of the representation), then the credibility rule did not apply and the evidence was admissible for the purpose of attacking the credibility of the witness, subject to discretionary exclusions or limitations. Then s 60 made it evidence of fact as well. Here, the PIS was relevant to both credibility and the hearsay purpose so s 102 was not engaged. It was therefore unnecessary to consider exception under s 103. Then, because it was now admissible for a credibility purpose, it can be admitted for the hearsay purpose by operation of s 60.

Adam v The Queen (2001) 207 CLR 96 (KOP [11.40]) It is not clear whether the Crown sought to adduce the actual document containing the PIS to the police or whether it only sought to adduce the oral evidence of the inconsistency in Sako’s cross-examination, but it appears to be the later. As a result of this decision the Act was amended, inserting a new definition of credibility evidence in s 101A and amending s 102 to avoid this result. Now, evidence does not escape the credibility rule just because it is relevant for another purpose - it must also be admissible for that other purpose. If admissible for another purpose, it is not credibility evidence and need not comply with requirements of Part 3.7. As a general rule you should see whether the evidence is admissible for another purpose before considering requirements of Part if you can get it in for another purpose it is not “credibility evidence”. Accordingly, it can be used to support/attack credibility (as well as the other purpose) See Odgers:

Adam v The Queen (2001) 207 CLR 96 (KOP [11.40]) A PIS may be relevant because affects credibility as well as for a hearsay purpose (to prove facts asserted therein). If s 59 applies to prevent hearsay use, it is credibility evidence (assuming that it is not admissible for some other purpose). If you can find an exception to hearsay rule, and get it admitted for the hearsay purpose, it is not credibility evidence. Pt 3.7 does not apply. It can then be used for both purposes. Note that you cannot rely on s 60 to achieve this outcome. That is because of language of s 60 - It only applies where evidence is admitted for that other use. The note s 101A(b) confirms this – ‘ss 60 and 77 cannot apply to evidence that is yet to be admitted.’

Adam v The Queen (2001) 207 CLR 96 (KOP [11.40]) Exceptions: If it is ‘credibility evidence’ (i.e. not admissible for any other purpose) you may still be able to get it in for the credibility purpose if it meets requirements of one of the exceptions in Pt If so, you can then rely on s 60 to prove the truth of its contents (because it has been admitted) However, if it is ‘credibility evidence’ and it does not meet the requirements of one of the exceptions in Pt 3.7, it cannot be admitted and you cannot rely on s 60 to get it in.

Palmer v The Queen (1998) 193 CLR 1 (KOP [11.30]) Pre-evidence Act case Convicted of several sexual offences against 14 year old. One of appeal grounds related to questions asked in cross-examination: Palmer’s counsel had suggested to the complainant in cross-examination that she had accused Palmer to pay him back for not giving her enough attention. Palmer was asked in cross-examination to suggest a motive for the complainant’s accusation - he could not do so. Trial took place prior to commencement of Evidence Act.

Palmer v The Queen (1998) 193 CLR 1 (KOP [11.30]) Pre-evidence Act case Brennan CJ, Gaurdon and Gummow JJ Queried propriety of cross-examining the accused about the complainant’s motive to lie. The fact that an accused has no knowledge of any fact from which a motive might be inferred is generally irrelevant. In general an accused’s lack of knowledge simply means that his evidence cannot assist in determining whether the complainant has a motive to lie. [7] This tactic merely invites the jury to accept the complainant’s evidence unless a positive answer to the question is given by the accused. (See also Picker v The Queen [2002] NSWCCA 78).

Palmer v The Queen (1998) 193 CLR 1 (KOP [11.30]) McHugh J Referred to the common law ‘finality rule’ and ‘bolster rule’ where evidence given by a witness in cross-examination regarding credit is “final” and cannot be rebutted or bolstered, subject to certain exceptions. Here, if the issue of the complainant’s motivation for fabricating her complaint goes only to credit, then her answers in cross-examination would be final. But he also said that he thought that this was not only a credibility issue but also went to the facts in issue in the case – did it happen? He gave a useful discussion of the distinction between evidence relevant to credibility and evidence relevant to a fact-in-issue. The line between evidence relevant to credibility and evidence relevant to a fact in issue is often indistinct and unhelpful. The probability of testimonial evidence being true cannot be isolated from the credibility of the witness except in those cases where other evidence confirms its truth.

Palmer v The Queen (1998) 193 CLR 1 (KOP [11.30]) McHugh J The rationale behind the credit/fact-in-issue distinction does not depend on logic. The distinction is drawn to confine the trial process and to be fair to the witness. It is necessary to prevent the trial being burdened with side issues that would arise if parties could investigate matters whose only real probative value was they tended to show the veracity or falsity of the witness giving evidence that was relevant to a fact in issue. Here the victim's motive or lack of it for fabricating the allegations could fairly influence the belief of the jury as to the probability of the occurrence of the alleged offences. Motive assumes particular importance in sexual assault cases where it is often word against word.

Palmer v The Queen (1998) 193 CLR 1 (KOP [11.30]) McHugh J The fact that accused is not aware of facts suggesting a motive to lie does not mean there isn't one, But the accused is ordinarily in a position to know whether such facts exist. lf accused can give no evidence of this, it increases the probability that there is no motive. However, there are dangers in allowing the accused to be cross-examined as to whether he knew of any facts suggesting motive. If he has no such knowledge, it may invite jury to reverse the onus of proof, i.e. inability to come up with a motive = guilty. The prosecution was entitled to cross-examine the accused about motive – because failure to reveal facts that might provide a basis for the complainant concocting her complaint might assist the jury to find that her evidence was true. Judge's directions overcame the risk that the jury might reverse the onus. The majority allowed the appeal.

Palmer v The Queen (1998) 193 CLR 1 (KOP [11.30]) McHugh J Now the exceptions to the “finality” and “bolster” rules are effectively dealt with in s 106.

Assessing credibility An appellate Court will only overturn a judge’s finding on credit if it is “inconsistent with facts incontrovertibly established by the evidence.” Devries v Australian National Railways Commission [1992] HCA 41. But such assessments are not objective.

Hargraves v The Queen (2011) 282 ALR 214 (KOP [11.180]) Appellants convicted of charges arising out of tax avoidance scheme. Appellants’ dishonesty was the only issue at trial. The prosecution called the appellants’ accountant and he was cross-examined to the effect that he tailored his evidence to avoid prosecution. Appellants’ gave evidence. Judge directed as to assessing evidence and credibility. Included “Does the witness have an interest in the subject matter of the evidence?.. There are any number of personal interests which people have and which they sometimes try to protect in giving evidence” The appellant asked that the jury be discharged because the direction invited them to test the appellants’ evidence according to their interest in the outcome. Judge refused – it was about the witness not the appellant.

Hargraves v The Queen (2011) 282 ALR 214 (KOP [11.180]) High Court held that it is not permissible for the judge to: direct the jury to assess the evidence given by an accused according to the interest that the accused has in the outcome of the trial; or suggest that the accused's evidence should be scrutinised more carefully than evidence of other witnesses. The judge may, but need not, suggest how the jury might evaluate the credibility of evidence that has been given. But informing and underpinning this, the judge’s instruction to the jury, must not deflect the jury’s attention from the need to be persuaded beyond reasonable doubt of the accused’s guilt before returning a verdict of guilty. Inviting the jury to test the evidence given by an accused according to the interest that the accused has, or suggest that the accused's evidence should be scrutinised more carefully than evidence of other witnesses, deflects the jury from applying the requisite standard of proof.

Hargraves v The Queen (2011) 282 ALR 214 (KOP [11.180]) But here, read as a whole the direction would not have deflected the jury. There was no miscarriage. Appeal dismissed.

Attacking credibility of own / other side's witness EA ss 43-44, 101A, , 106, 192 State Rail Authority of NSW v Brown (2006) 66 NSWLR 540 (KOP [11.60]) Col v The Queen [2013] NSWCCA 302 (KOP [11.90])

103 - Exception: cross-examination as to credibility 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: 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 the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

104 - Further protections: cross-examination as to credibility This section applies only to credibility evidence 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 to the assessment of 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: 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.

104 - Further protections: cross-examination as to credibility (4) Leave must not be given for cross-examination by the prosecutor under subsection (2) unless 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 is relevant solely or mainly to the witness’s credibility. (5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to: the events in relation to which the defendant is being prosecuted, or the investigation of the offence for which the defendant is being prosecuted.

104 - Further protections: cross-examination as to credibility (6) Leave is not to be given for cross-examination by another defendant unless: (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.

106 - Exception: rebutting denials by other evidence The credibility rule does not apply to evidence that is relevant to a witness’s credibility and that is adduced otherwise than from the witness if: in cross-examination of the witness: the substance of the evidence was put to the witness, and (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.

106 - Exception: rebutting denials by other evidence (2) Leave under subsection (1) (b) is not required if the evidence tends to prove that the witness: 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.

Attacking credibility of other side's witness State Rail Authority of NSW v Brown (2006) 66 NSWLR 540 (KOP [11.60]) Plaintiff in train accident. Damages was the only issue. The judge found that the plaintiff sustained injuries to neck, shoulder and back. The plaintiff had originally claimed damage to his teeth, but dropped this claim. The defendant wanted to cross-examine on this issue (as a credibility issue), but the judge stopped this line of questions. This was raised on appeal. Basten J There was other evidence of this claim available. Permission to cross-examine was in the discretion of the judge. Court of Appeal should not interfere with judge’s ruling on credit, at least where there is no basis for thinking that the trial judge didn’t understand the purpose of and nature of the questions.

Attacking credibility of other side's witness State Rail Authority of NSW v Brown (2006) 66 NSWLR 540 (KOP [11.60]) Gyles J If the questions could have produced evidence of substantial probative value, they should have been allowed, at least until the judge could tell if substantially probative evidence would emerge. The judge did not engage with this question and therefore erred. But not persuaded that this inability to question caused a ‘substantial wrong or miscarriage’ therefore appeal fails on this ground.

Attacking credibility of other side's witness Section 108A places a similar limitation on evidence as to the credibility of a person who made a previous representation, but who is not a witness. Section 104 places limitations on cross-examining the defendant in a criminal trial on matters going to credibility

Attacking credibility of own witness EA ss 43-44, 101A, , 106, 192 Adam v The Queen (2001) 207 CLR 96 (KOP [11.40]) Col v The Queen [2013] NSWCCA 302 (KOP [11.90])

Adam v The Queen (2001) 207 CLR 96 (KOP [11.40]) A group of young men were seen attacking a policeman in a hotel carpark who was also stabbed and died. Adam was one of the men charged with the murder. The Crown called Sako who was present during some of the events. Sako gave several recorded police interviews. 10 Weeks after the crime, he gave evidence in an ERSIP that implicated Adam. However, at trial he gave evidence harmful to the Crown case (didn’t see Adam). Crown obtained s 38 leave to attack his credibility. Sako agreed that he had made the PIS, but said that he had repeated what he was told at the time. Because the trial judge admitted the PIS pursuant to the old s 102, the crown did not need to rely upon s 103, and therefore, this was not central to the argument before the High Court. However, Sako’s PIS could probably have been admitted on this basis.

Attacking credibility of own witness Col v The Queen [2013] NSWCCA 302 (KOP [11.90]) The defendant and his partner were involved in a violent domestic dispute arising out of his attendance at a BBQ (she called him earlier and was angry that he had stayed). After the argument and victim returned to bed. Appellant allegedly doused the bed in methylated spirits and set it alight. Helped then victim to the bathroom and extinguished her. He called 000 several times. The call recordings suggest evidence of his actions. She tells variations on this story to ambulance officers, family and friends and writes a similar note. She gave the police a statement to this effect. Subsequently she sent a short statement recanting her story: denying previous accounts and saying that she did not remember what happened. In Court she denied her previous statement and said that she did not remember anything.

Attacking credibility of own witness Col v The Queen [2013] NSWCCA 302 (KOP [11.90]) Defence case was that it was an accident – he poured what he thought was water on a cigar fire. He was convicted of GBH. This is similar to Adam (aside from the issue of the original definition of s 102) in that the Crown is seeking to cross-examine in relation to a PIS given by witness who now denies the truth of the original statement to police. But here s 103 was looked at.

Attacking credibility of own witness Col v The Queen [2013] NSWCCA 302 (KOP [11.90]) On appeal, the appellant complained about the admission of the original police statement (the document). He argued that it was credibility evidence (s101A) because it was only admissible for a credibility purpose (to show that her evidence in Court should not be believed), but relevant for another inadmissible purpose (hearsay – to prove the events). He argued that s 66 did not apply because of s 66(3). But the defendant conceded that the victim’s evidence was adduced in cross-examination and therefore s 103 applied. It was not seriously argued that the evidence of the PIS was not of substantial probative value. The Court held that s 106 applied to it as well. Once admitted for the non-hearsay (credibility) purpose – s 60 applied and it could be used to prove what happened (evidence of facts).

Attacking credibility of own witness Col v The Queen [2013] NSWCCA 302 (KOP [11.90]) In Adam, it was not clear whether it was the PIS contained in the police statement or the oral admission of the PIS in cross-examination which was the subject of the appeal. In principle if the witness admits to the PIS and its contents in cross-examination, that is enough for the party to make the submission that the original inconsistent representation exists. The original sufficiency of this (i.e. the oral admission that the witness made the PIS) related partly to the pre-UEL common law, where there was no s 60, and therefore such cross-examination was only relevant to credibility. In those circumstances, there was no purpose in tendering the document – the inconsistency was already admitted: the credibility was already tarnished. See Odgers [ ]; Aslett v The Queen [2006] NSWCCA 49

Attacking credibility of own witness Col v The Queen [2013] NSWCCA 302 (KOP [11.90]) However now, because of s 60, the use of the document can take on significance. in Col, the Court also allowed the admission of the actual document containing the PIS i.e. the Police statement. This can be adduced through cross-examination of the witness under s103 and/or s 106. This is consistent with McMahon v John Fairfax Publications Pty Ltd (No 5) [2012] NSWSC 218 BUT There is some argument about this…

Attacking credibility of own witness Col v The Queen [2013] NSWCCA 302 (KOP [11.90]) Odgers (at [ ]) says that McMahon should not be followed and cites R v Ryan (No. 7) [2012] NSWSC 1160, [28]. He argues that if you can get the document in through cross-examination under s 103, that reduces the purpose of s The latter section requires fairness by putting the PIS to the witness, and then only allowing admission of the document if the witness denies the substance of the PIS and leave is granted (where required). If the witness does not deny the PIS, but accepts it, Odgers argues that s 106 prevents you putting further evidence of it in. He argues that if you can get the document in through s 103, it doesn’t matter whether the substance of the PIS is denied or not. So what’s the point of s 106? Curiously, he does not refer to Col on this issue.

Attacking credibility of own witness Col v The Queen [2013] NSWCCA 302 (KOP [11.90]) Col appears to confirm McMahon and Aslett, but the applicability of s 103 appears to have been conceded by the defence [20], so there is not much analysis. The Court also said that s 106 as applied as well, because the witness denied the substance of the PIS (i.e. “I did make the statement, but that was what was told to me, not my recollection.”) Odgers questions this [ ]

Attacking credibility of own witness Col v The Queen [2013] NSWCCA 302 (KOP [11.90]) But, if you are trying to get the document in in cross-examination, remember that you must comply with s 43 and in particular, s 43(2): A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not: complete particulars of the statement have been given to the witness, or a document containing a record of the statement has been shown to the witness. If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner: 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’s 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 the party’s case.

Attacking credibility of own witness Col v The Queen [2013] NSWCCA 302 (KOP [11.90]) On appeal the defence argued that, because the witness admitted the PIS, s 43(2) prevented the tender of he document. The Court dismissed this argument, citing R v Aslett [2006] NSWCCA 49: “Nothing in s 43 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 s 43 purports to limit the effect of ss 38, 103 or 60.” Court also held that it had substantial probative value and that there was little unfair prejudice in admitting the statement: no s 137. The Court also dismissed the argument that admitting the document would cause the jury to give it undue weight.

Supporting credibility of party's own witness EA ss 102, 108 R v Ngo (2001) 122 A Crim R 467 (KOP [11.110]) R v Whitmore (1999) 109 A Crim R 51 (KOP [11.120]) Nikolaidis v The Queen [2008] NSWCCA 323 (KOP [11.130]) Graham v The Queen (1998) 195 CLR 606 (KOP [7.150]) Dupas v The Queen (2012) 218 A Crim R 507(KOP [11.140]) M A v The Queen [2013] VSCA 20 (KOP [11.150]) De Silva v The Queen [2013] VSCA 20 (KOP [11.160])

108 - Exception: re-establishing credibility 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: evidence of a prior inconsistent statement of the witness has been admitted, or 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.

Supporting credibility of party's own witness R v Ngo (2001) 122 A Crim R 467 (KOP [11.110]) Ngo charged with murder of Newman (with others). Crown wanted to lead evidence of two immune witnesses. Wanted to adduce evidence of when they first went to the authorities, why they did so, and why they did not disclose everything. Defendant said in breach of ss 101A, 102 because it was relevant only to the credibility of the two witnesses (they already got their stories in, and this evidence was just trying explain any potential problems with their statements). It is often good practice to deal with problem witnesses early and if there are going to be problems with PISs then lead evidence in chief to sort it out rather than wait for cross-examination. However, this can offend s There is no exception for evidence in chief.

Supporting credibility of party's own witness R v Ngo (2001) 122 A Crim R 467 (KOP [11.110]) The Judge ruled that the Crown can lead evidence in chief that the witnesses were charged and that at a later stage they went to the authorities and were given indemnities, but not their reasons or motives for going to the police. And not their PISs. These can only be dealt with in re-examination (if they are cross-examined on these issues). The Crown then wanted to refer to these matters in opening (including what the witnesses will say in re-examination). The defence objected to this, saying it will take away the attack of the cross-examination. Judge said this was OK, as long as Crown dealt with these issues only in general terms and was not too specific.

Graham v The Queen (1998) 195 CLR 606 (KOP[7.180]) (Pre 2009 amendment – no 66(2A) Alleged sexual assaults when complainant was 9 and 10 (1987, 1988). Complainant told friend in 1994. Charges then laid. Friend gave evidence of complaint. Evidence admitted under common law (even though EA in force!). Appeal against conviction based on admissibility of complaint evidence. Was it admissible pursuant to an exception to the credibility rule?

Graham v The Queen (1998) 195 CLR 606 (KOP[7.180]) Because the evidence of the victim’s complaint was not admissible pursuant to s 66, it was admissible only if s 108 applied, as credibility evidence. At first instance, no leave was sought or obtained (see s 108(3)). On appeal, the respondent argued that the judge at first instance would have given leave for the evidence of complaint to be given pursuant to s 108(3) because the appellant’s defence revolved around denial of the allegations. Held: The appellant’s denial of the charges and the course of cross-examination of the complainant may well have amounted to a suggestion that the evidence had been ‘fabricated’. But it was by no means inevitable that leave should have been given to adduce evidence of the prior consistent statement of the complainant. [7]

Graham v The Queen (1998) 195 CLR 606 (KOP [7.180]) “In exercising the discretion under s 108(3) to permit the adducing of evidence of a prior consistent statement, it is important to bear two matters in mind. First, s 108 creates an exception to the "credibility rule" - the rule that evidence that is relevant only to a witness's credibility is not admissible. Second, it is important to identify how the evidence relates to the statutory premise for its admission. Whether, if admissible, the complaint becomes evidence of the truth of what is asserted is not relevant to the exercise of the discretion to give leave under s 108. The exercise of the discretion under s 108 depends upon the effect of the evidence on the witness's credibility: here, the suggestion of fabrication.” [8] The exercise of the discretion under s 108(3) depends upon the effect of the evidence on the witness’s credibility. Section 108 does not focus upon any temporal aspects of the fabrication. Unless the making of the complaint can be said to assist the resolution of the question (whether there was a fabrication), the evidence of complaint is not important.

Graham v The Queen (1998) 195 CLR 606 (KOP[7.180]) “How does the making of a complaint six years after the events bear upon that question? Unless the making of the complaint can be said to assist the resolution of that question, the evidence of complaint is not important and would do nothing except add to the length of the hearing. And in this case, it is by no means clear that the making of a complaint six years after the event does assist in deciding whether the complainant had fabricated her evidence. Although trial counsel for the appellant suggested to the complainant, by his last question in cross-examination, that she was "making it all up" the allegation of fabrication of evidence did not loom large in the trial. No question was put, and no answer was given, from which the time of alleged fabrication could be identified. The complaint having been made in 1994, and it having led at once to the start of police investigations, it may be doubted that a jury could gain assistance from its making in deciding whether the complainant had fabricated her story.” [9] Appeal allowed because accused may have lost a significant chance of acquittal – s 66 basis?

Supporting credibility of party's own witness R v Whitmore (1999) 109 A Crim R 51 (KOP [11.120]) Convicted of assault and sexual assault on child. Case was based solely on complainant’s evidence and evidence that the child made an initial complaint to her aunt three years later. Evidence ofhte complaint was objected to on the basis that it was not recent. Complaint ruled admissible (with an appropriate direction). No reference was made to ss 60, 66 or 108. Decision at first instance handed down just before Graham v The Queen. Also dealt with as if Evidence Act not in force. Complaint evidence was inadmissible as an exception to the hearsay rule. No leave was sought and leave to admit on credibility, so it was not considered.

Supporting credibility of party's own witness R v Whitmore (1999) 109 A Crim R 51 (KOP [11.120]) On appeal, the relevance of the evidence to credibility was agitated. The Court said that it was not certain that leave would have been given in the Cort below. Express denial of the fact or allegation, without more does not necessarily suggest implicitly or positively, fabrication or reconstruction. Even if it did, not going further mitigates against leave being given. Maybe common law helpful. Useful in interpreting s 108(3)(b)....

Supporting credibility of party's own witness Nikolaidis v The Queen [2008] NSWCCA 323 (KOP [11.130]) Solicitor convicted of making a false instrument by ordering his PA to backdate document. Another solicitor gave evidence of the PA’s complaint of this to her after the event (i.e. PCS). The other solicitor was not cross-examined. Relevant only to credibility of PA (Why? See next slide). Therefore only admissible if the Crown can rely on s 108(3)(a) or (b). Here (b), as no PIS was made. In the Court below leave was not sought, but no objection taken. In cross-examination it was put to the PA that she fabricated her story. She was also cross-examined on her financial difficulty and her attempts to extort the defendant for money by threatening to dob.

Supporting credibility of party's own witness Nikolaidis v The Queen [2008] NSWCCA 323 (KOP [11.130]) The CCA held that the only possible import of this cross-examination was to suggest that she had fabricated her evidence. Because she left in 2001, a consistent statement made prior to that date was capable of rebutting the suggestion of fabrication – foundation for s 108(3)(b) laid. (But does this matter? What of she told a colleague after she left?) The Court then looked at the factors in s 192 to see if leave should be given – here none militate against leave. Leave was not sought by Crown, so this was not looked at by the judge, but had leave been sought it would have been granted. Therefore the failure of the crown to seek leave did not lead to a miscarriage of justice.

Supporting credibility of party's own witness Nikolaidis v The Queen [2008] NSWCCA 323 (KOP [11.130]) But isn’t it wrong of Simpson J to say that it was relevant only to credibility [210]? It was also clearly relevant to a fact in issue: whether she was told to back date the document. McLellan CJ held that it was not fresh in her mind at the time of the conversation (because of elapse of time), so s 66(2) did not apply to get around the hearsay rule – therefore it was credibility evidence (because it was not admissible for the other purpose). He later said that it would have been memorable(!) - But remember s 66(2A) was not around then so the time elapsed would have been enough

Papakosmas v The Queen (1999) 206 CLR 650 ([KOP 5.40]) Defendant charged with rape; issue was not whether sex took place, but consent. lssue was whether the complaint that 'P raped me', made to Ms Ovadia, Ms Stephens and Ms Fahey, almost immediately after the time complainant said the rape occurred, was relevant. Potentially relevant for two purposes: its hearsay purpose (to prove defendant raped the complaint) and its non-hearsay purpose (as a prior consistent statement that supported the credibility of the complainant as a witness).

Papakosmas v The Queen (1999) 206 CLR 650 ([KOP 5.40]) The defendant did not dispute it was relevant to credibility. He argued it was not relevant to prove truth of facts asserted. The defendant Appellant argued that even if the complaint evidence was admitted under s 66, the trial judge should have limited its use to credit purpose, i.e. the jury should have been directed that the complaint evidence could only be used to support the credit of the complainant to prove consistency of conduct.

Papakosmas v The Queen (1999) 206 CLR 650 ([KOP 5.40]) Gleeson CJ and Hayne J The Appellant argued that as a general rule, s 136 should be applied to limit complaint evidence to prevent its hearsay use. “The submissions must be rejected. They amount to an unacceptable attempt to constrain the legislative policy underlying the statute by reference to common law rules, and distinctions, which the legislature has discarded.” [39] “There may well arise circumstances in which a court, in the exercise of a discretion enlivened by the requirements of justice in the facts and circumstances of the particular case, will see fit to limit the use of complaint evidence, and, in some instances, it may be appropriate to effect that limitation in a manner which corresponds to the previous common law. To assert a general principle of the kind for which the appellant contends, however, would be to subvert the policy of the legislation. [40]

Papakosmas v The Queen (1999) 206 CLR 650 ([KOP 5.40]) McHugh First considered relevance to credibility - seen to be consistent with what complainant would do if she had been assaulted. He questions this assumption. Cites Fitzgerald P in R v King. Principles relating to complaint evidence are based on male assumptions concerning the behaviour to be expected of a female who is raped - human behaviour following such a traumatic experience likely to be influenced by a variety of factors. Here, defendant did not dispute evidence was relevant to credibility.

Papakosmas v The Queen (1999) 206 CLR 650 ([KOP 5.40]) McHugh “Recent complaint evidence or its absence is relevant to, but not decisive of, the credibility of the complainant’s evidence in sexual assault cases because the making of an early complaint is regarded as being consistent with what a complainant would do if he or she had been assaulted as alleged. At all events, the common law judges took that view of complaint evidence. Whether the credibility reason for admitting complaint evidence remains, or ever was, valid may be doubted. In R v King, Fitzgerald P pointed out, correctly in my opinion, that the admissibility of complaint evidence ‘is based on male assumptions, in earlier times, concerning the behaviour to be expected of a female who is raped, although human behaviour following such a traumatic experience seems likely to be influenced by a variety of factors, and vary accordingly.’ However the appellant did not dispute that complaint evidence was relevant to credibility. And the view that it is relevant to credibility has been stated so many times by judges that that aspect of the rule can probably only be changed by legislation, not judicial innovation.”

Papakosmas v The Queen (1999) 206 CLR 650 ([KOP 5.40]) McHugh lt is difficult to see why complaint evidence is not also "relevant" to the issues of consent and intercourse. ln almost every conceivable instance of sexual assault, evidence that the victim had complained about the assault at the first reasonable opportunity, would "rationally affect...the assessment of the probability of the existence" of intercourse having taken place and of a lack of consent to that intercourse having been given (at [77]) . “It is artificial and wrong to admit evidence pursuant to s 66(2) and then limit the use of the evidence to credibility issues by exercising the power conferred by s 136.” [94]

108A - Admissibility of evidence of credibility of person who has made a previous representation If: evidence of a previous representation has been admitted in a proceeding, and (b) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding, credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person’s credibility. (2) Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to: whether the evidence tends to prove that the person who made the representation knowingly or recklessly made a false representation when the person was under an obligation to tell the truth, and (b) the period that elapsed between the doing of the acts or the occurrence of the events to which the representation related and the making of the representation.

108B - Further protections: previous representations of an accused who is not a witness This section applies only in a criminal proceeding and so applies in addition to section 108A. (2) If the person referred to in that section is a defendant, the credibility evidence is not admissible unless the court gives leave. (3) Despite subsection (2), leave is not required if the evidence is about whether the defendant: is biased or has a motive to be untruthful, or is, or was, unable to be aware of or recall matters to which his or her previous representation relates, or has made a prior inconsistent statement.

108B - Further protections: previous representations of an accused who is not a witness (4) The prosecution must not be given leave under subsection (2) unless evidence adduced by the defendant has been admitted that: tends to prove that a witness called by the prosecution has a tendency to be untruthful, and is relevant solely or mainly to the witness’s credibility. (5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to: 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) Another defendant must not be given leave under subsection (2) unless the previous representation of the defendant that has been admitted includes evidence adverse to the defendant seeking leave.

108C - Exception: evidence of persons with specialised knowledge108C Exception: evidence of persons with specialised knowledge The credibility rule does not apply to evidence given by a person concerning the credibility of another witness if: the person has specialised knowledge based on the person’s training, study or experience, and (b) the evidence is evidence of an opinion of the person that: is wholly or substantially based on that knowledge, and (ii) could substantially affect the assessment of the credibility of the witness, and (c) the court gives leave to adduce the evidence.

108C - Exception: evidence of persons with specialised knowledge108C Exception: evidence of persons with specialised knowledge (2) To avoid doubt, and without limiting subsection (1): a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their behaviour during and following the abuse), and (b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of that kind, a reference to an opinion relating to either or both of the following: the development and behaviour of children generally, (ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

Attacking the credibility of other party's own witness - Expert Dupas v The Queen (2012) 218 A Crim R 507(KOP [11.140]) Defendant found guilty of murder. Identified from photo-board. Expert gave evidence about the weakness of identification evidence in general and about the memories of certain witnesses. Section 108C was enacted to deal with expert opinion evidence which opines on the reliability of other evidence - Can only be admitted with leave of the judge. The parties and trial judge proceeded on erroneous basis that this evidence was about ‘reliability’ rather the than ‘credibility’. But once you determine that the sole use is directed to credibility of witness, then the credibility rule applies.

Attacking the credibility of other party's own witness - Expert Dupas v The Queen (2012) 218 A Crim R 507(KOP [11.140]) The Court rejected the distinction in R v Peacock between credibility and reliability (the later being evidence going to credibility of the evidence given by that witness). Looked at definition in the Dictionary – it covers reliability issues. “Credibility” in the UEL imports notions of both truthfulness and reliability. The exception in 108C permits expert evidence on behavioural factors, which assist the Court in understanding the capacity of the witness to give credible evidence. However here, the expert could not opine on the credibility of individual witnesses because he didn’t have the foundation to do so.

Attacking the credibility of other party's own witness - Expert Dupas v The Queen (2012) 218 A Crim R 507(KOP [11.140]) But note IMM v The Queen [2016] HCA 14, at [53]: “The Evidence Act itself creates a difficulty in separating reliability from credibility. The definition of "credibility", which concerns both a person who has made a representation that has been admitted into evidence and a witness, includes the person's or witness's "ability to observe or remember facts and events" relevant to the representation or their evidence. These are matters which go to the reliability of the evidence. The view expressed in Dupas v The Queen, which reserved a particular role for the trial judge with respect to the reliability of evidence, did not have its foundations in textual considerations.”

Supporting credibility of party's own witness - Expert Ma v The Queen (2013) 226 A Crim R 575 (KOP [11.150]) Appellant convicted of 7 charges of sexual abuse of daughter. During trial, a psychiatrist gave expert evidence for Crown on behavioural framework within which complainant’s reaction should be assessed and understood: Why complainant didn’t cry out during assaults although other family members were there. Failure of complainant’s mother to accept complaint, was not unusual an reaction and could be relevant to the complainant’s behaviour thereafter. Why victim maintained an ongoing relationship with her father despite the abuse.

Supporting credibility of party's own witness - Expert Ma v The Queen (2013) 226 A Crim R 575 (KOP [11.150]) The defence argument was that the conduct did not take place. The appellant challenged the evidence on a number of bases. The expert evidence that the Crown relied upon did not go directly to the issues, but was being used to rebut argument that her behaviour was harmful to her credit – made her less believable (c.f. McHugh in Palmer?). Dr’s evidence of patterns of victim behaviour was relevant to rebut the defence case of counter-intuitive behaviour of the complainant. But was the evidence on the mother’s response sufficiently related and relevant to evidence of potential responses by a victim of sexual abuse, and so fell within s108C(2)?.

Supporting credibility of party's own witness - Expert Ma v The Queen (2013) 226 A Crim R 575 (KOP [11.150]) Yes. The evidence relating to maternal response to complaints of by a child sexual abuse was sufficiently interrelated with and relevant to the evidence of potential responses by a victim of sexual abuse, so as to fall within s 108C – it related to how the victim deals with this response. See [48] – [51].

Supporting credibility of party's own witness - Expert De Silva v The Queen (2013) 236 A Crim R 214 (KOP [11.160]) Appellant convicted of 2 charges of sexual penetration of minor and 5 charges of indecent act. Other charges were hung or failed due to directed acquittal. The appellant and complainant’s dad were both Sri Lankan, Catholic and had frequent contact through social environment and work. Evidence was led of uncharged acts (for context and tendency). Evidence was called from child psychiatrist to explain why earlier interview of victim did not include allegations later levelled at defendant.

Supporting credibility of party's own witness - Expert De Silva v The Queen (2013) 236 A Crim R 214 (KOP [11.160]) The purpose of such evidence is educative and bears on the credibility of the complainant. Here the evidence strayed into areas beyond his area of qualification, including opinion regarding the tenets of the Catholic faith and Sri Lankan culture. It also speculated about the non-disclosure of the complainant despite not conducting an interview with her. Appellant could have objected, and had he done so, the evidence would have been restricted. Appeal allowed.

Problem D has a son, X. On X's trial in 1985 for burglary, D gave evidence to support X's alibi that X was at home with D on the night of the burglary. In cross-examination, D admitted that her evidence in this respect was untrue, and that she had lied to protect X from the possibility of going to jail. She said that X was the only means of support for herself and his three siblings. D was, however, later charged and convicted of perjury. In 1996, P sues D in negligence arising out a car collision. D gives evidence of what happened in the collision. In cross-examination, P's counsel asks D: Q: Do you think of yourself as a truthful person? A: Yes. Q: Would you tell a lie to a court? A: No. Q: Were you convicted of perjury in 1985?

Problem Suppose you are counsel for D, and, obviously, you would rather that D was not required to answer this question. How would frame one or more objections to it being asked? Assume that P's counsel does ask the question about D's perjury and D answers "Yes". What use could P's counsel make of this answer when addressing the fact-finder on how the fact-finder should assess the evidence given by D as to what happened in the collision? Assuming that P's counsel does ask the question and D answers “Yes”, what evidence might D's counsel seek to elicit in re-examination of D? What use could D's counsel make of this evidence to rebut the submissions that P's counsel might make in (b)? Assuming that P's counsel does ask the question and the D answers ‘no’, could P seek to prove that D had a conviction for perjury?

Problem P sues D in a workplace injury case. P calls W who gives evidence in his examination in chief that: (i) he saw X drop a brick on P's foot at 3.00 pm on 1 May 2003; (ii) that later that day P complained to him (W) that he (P) had a very sore foot; and (iii) that he (W) saw P hobbling about on the foot up to several weeks after the incident. Assume that it is important to P's case to prove that facts (ii) and (iii) exist.

Problem Assume now that W was cross-examined as follows: D's counsel: You told the court that you saw X drop a brick on P's foot at 3.00 pm on 1 May 2003? W: Yes. D's counsel: Do you remember talking to X's supervisor at 4.00 pm on 1 May 2003? D's counsel: And what you told X's supervisor was that you did not see how P injured his foot about an hour

Problem How would you describe the evidence has W just given by his answering 'yes' to the last question? (Is it evidence that W did not see how P injured his foot, etc? If not, what is it evidence about?) Explain how this evidence is relevant to W's credibility. If W had answered this last question 'no', could D have adduced evidence in D‘s case that this is what W had told X's supervisor?

Problem D adduces evidence from Z that he was with P, X and W at 3.00 pm on1 May 2003, and that he did not see X drop a brick on P's foot. Could D's counsel make use of this evidence from Z as evidence relevant to the fact in issue of whether X did drop a brick on P's foot at that time? Could D's counsel make use of this evidence from Z as evidence relevant to the credibility of W (see above for the evidence that W gave in his examination in chief)? If so, what would D's counsel submit as how the fact-finder should use the evidence on this basis?

Problem Tran is suing Brown for personal injuries arising from a collision between their cars which occurred on a highway. Immediately after the collision, Tran told his passenger: “That car went through a red light”. At the hearing, Tran testifies that Brown’s car went through a red light. Counsel for Brown then cross-examines Tran and asks the following questions: “You have concocted this story today, haven’t you, because you are actually the driver who went through the red light?” Tran answers “No”. What should Tran’s counsel do? Should Tran’s counsel call the passenger?

Problem Green arrived at the scene straight after the collision and gave first aid to both drivers. Green helped pull Brown out of his car, and told the police officer who attended at the scene the following: “As I dragged Brown from his car, he said to me, ‘I am really sorry, I must have dozed off, and when I woke up I was on the wrong side of the road and I hit the other car.’” Tran’s solicitor issued a subpoena on Green to give evidence at the hearing. Green is called as a witness and testifies “I cannot remember any conversation between myself and Brown”. What should Tran’s counsel do? What application may be necessary?

Problem Brown then gives evidence in his case. Brown states that “I stopped at the red light and then drove when it was green”. Tran’s counsel has a police notebook entry that records an interview with Brown. In this interview, Brown states “I can’t remember the traffic light”. From the above evidence, how should Tran’s counsel cross-examine Brown?

LAW OF EVIDENCE LPAB – Summer 2016/2017 Week 10.

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LAW OF EVIDENCE LPAB – Summer 2016/2017 Week 10.

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