Credibility Evidence. Credibility Rule s 102: Credibility evidence about a witness is not admissible.

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1 Credibility Rule s 102: Credibility evidence about a witness is not admissible. Specific Exceptions to CR: evidence adduced in crossexamination (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. Credibility Evidence Definition of Credibility: credibility of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person s ability to observe or remember facts and events about which the person made the representation. credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence. Construed as including witness reliability as well as their believability and ability to observe and remember: R v Milat s 101A: credibility evidence is defined in s101a as relevant for: (a) evidence solely towards assessment of credibility (b) (above) (a) AND another inadmissible purpose virtue of parts (hearsay, opinion, admissions, judgment/convictions, tendency/coincidence) Note: Sections 60 (non-hearsay purpose exception) and 77 (evidence relevant otherwise as opinion evidence) does NOT affect para (b) because they cannot apply to evidence that is yet to be admitted. Credibility and Relevance E which relates to W s C is potentially able to rationally affect (directly or indirectly) the assessment of the probability of the existence of a FII (s 55(2)) If neither relevant to FII nor C E is totally irrelevant to proceedings and therefore inadmissible (s 56) Q ing W on C requires a higher standard of relevance than s 55 - SPV Prior convictions and prior dishonest conduct; Veracity of the witness, including bias to a party, a motive to lie, evidence of making a false representation while under a legal or moral obligation to tell the truth; The witness s capacity to remember events or their capacity to observe those events; Evidence that a witness has made a prior inconsistent or prior consistent statement; Evidence of circumstances surrounding any observations that may affect accuracy Threshold question: Only goes towards W s C? OR Whether also directly relevant to FII? Piddington v Bennett and Wood: Collateral facts are facts NOT constituting the matters directly in dispute between the parties e.g. one pertinent only to W s C Goldsmith v Sandilands principles: Primary rule E that relates ONLY to C of W is NOT admissible to prove E of W should OR should not be accepted. BUT exceptions exist Evidentiary rules based on distinction between issues of credit AND FII should NOT be regarded as hard and fast rules BUT should instead be seen as a well established guide to exercise of judicial regulation of the litigation process : Natta v Canham admission of evidence that is relevant solely to credibility allowed where: (in sexual offence cases) C of W so inextricably connected to FII that distinction meaningless: Funderburk McHugh J gives broader scope in Palmer v R and Nicholls Where circs affecting C SO inextricably connected with FII that it determine that fact trial judge should admit evidence Finality rule is rule of convenience, NOT fixed rule or principle Note where FR NOT applicable: The opportunity to observe an event is closely connected with observation that it should NOT be regarded as collateral matter falling within finality rule So party can contradict opposing W s E concerning time, place and lighting of, and distance from, the scene of an event, if the event is itself relevant

2 Some definitions: Contradicting E led which tends to disprove testimony relating to relevant FII Discrediting E that tends to show W should NOT be believed Attacking own W Prohibited per s 102 Option 1: introduce independent admissible E relevant to FII that contradicts witness evidence (with additional effect of discrediting witness) (Pocock) Option 2: party seek leave to C-X own witness where unfavourable evidence given (s 38) Option 3: if witness made PIS, seek leave to C-X on that statement (PIS MUST otherwise be admissible: s43) Note: a party can still call another witness whose testimony will contradict that of the earlier witness (e.g. speed of the car): R v Welden Un favourable W exception process: W s testimony is unfavourable (s 38(1)) With leave of court (s 38(6)/s 192), party can C-X own witness where one of three situations arise (s 38(1)) Attacking Own Witness What is unfavourable? Simple NOT favourable, not propitious, disadvantageous, adverse e.g. Souleyman, Glasby E that is not favourable includes anything that goes against their case. E may be unfavourable even if it constitutes part of an otherwise generally favourable testimony: R v Pantoja unfavourable evidence MAY arise during C-X by other party (e.g. Milat) and does NOT have to be unexpectedly unfavourable (e.g. Adam, Parkes) Not genuine attempt: Untruthfulness is NOT a necessary precondition to activation of s 38(1)(b) JUST W s reluctance to testify to their full ability that is the focus of the section: Adam v R Selective memory cases: R v GAC, R v Lozano Rules for granting leave per Adam 1 st : whether: evidence inherently reliable OR if NOT, jury can safely find it is necessarily reliable because e.g. finding that witness is untruthful in some particular aspect of his/her evidence necessarily entails earlier statement is TRUE 2 nd : regard to whether truth and accuracy of statement can be properly tested Procedure *The factors in s 38(1) that ground grant of leave MUST be identified so ambit of C-X can be controlled by reference to particular ground OR grounds on which it is granted: R v Hogan So depends on the subsection under which the C-X is being sought to be done (Smart AJ in R v White): O Grant of leave under s 38(1) entitles party to question W as though party were C-Xing him/her O s 38(2) provides that q ing W under s 38 taken to be C-X for purposes of the Act (other than s 39). Party may use leading questions in q ng W subject to s 42 + subject to s 41 (disallowance of improper qs) O Where C-X q s relate solely to C of W, SPV test per s 103 must be met O Note: CL rule in Browne v Dunn applies Prior inconsistent statements PIS serves 2 functions where issues relating unfavourable testimony arise (Adam v R): i. May be the basis upon which court rules W s testimony unfavourable ii. Consequently, W s PIS may be proved in front of the jury The statement has the potential effect of discrediting W and additionally may be admissible as exception to hearsay rule (s 60) subject to any limitations under s 136 To C-X on PIS, statement MUST be admissible: If relevant ONLY to W s C, ss102, 103 and 106 MUST be considered (these provisions limit C-X on matters solely relevant to C where E has SPV : s103) Granting leave to attack own W: Ct must be satisfied s38(1)(a)-(c) applies Leave must be sought (+ directions): s 192 factors and s 38(6) + procedural restraints if C-X on PIS: s43(2) Where party wishes to C-X on matter solely relevant to W s C, separate leave needed: s 38(3) + consider s 103 Leave under s38(1) is discretionary so court has regards to ss38(6)/192 + ss135-7: Flower Where court fails to take into account relevant matters in s 192: exercise of discretion will miscarry: R v Hogan Order of C-X Note: C-X under s 38 precedes opposing parties C-X: s 38(4) BUT could be varied: s 38(4)(5) It is possible that application to question W under s 38 has been allowed where unfavourable E was elicited in C-X: R v Parkes

3 Accrediting Own Witness Credibility of Non-Witnesses and Experts Re-Opening Prosecution Case s 102 generally prevents party from leading CE but may adduce in Re-X after attack in C-X occurs: R v Ngo party CANNOT anticipate attack on W s C in C-X by accrediting W during EIC (can do so in Re-X: s 108(1))BUT party may lead evidence of PCS in EIC under certain circs (and with leave of court): s 108(3) (an exception to CR) Only FII should be led in chief, not enhancement of C. ONLY for C-X to raise matters that go to credit: R v Connolly So resort to s 108 to gain admission ONLY necessary where it has relevance SOLELY to credibility of W Responding to C-X: Under s 108, admissible accrediting E comprises: O E adduced in RE-X (s 108(1)) to answer matters arising out of E elicited in C-X (s 29(1)) allowed UNLESS court grants leave for more extensive E to be adduced (s 39(b)) Leave of trial judge to adduce E under s 108(1) NOT required s 39(a) subject to s 39(b) sets limits on E adduced under provision Regarding Prior Consistent Statements: (contd in next box) E of PCS adduced with leave of court where either E of PIS made by W was adduced (s 108(3)(a)) OR it is/will be suggested that W s E has been fabricated, reconstructed or is result of suggestion (s 108(3)(b)) NO SPV test required like s 103 BUT E comprising PCS (admissible under s108(3)) requires leave of court which means s 192(2) factors apply s 108A allows evidence relevant to C of person who has made previous representation and that has been admitted into E, in circumstances where person will NOT be called as a witness (e.g. unavailable) AND substantially affects assessment of that person s C o(similar to s103) BUT sections applies to E that supports C/discredits person s 108B mirror to s 104 provides (further protections: C-X as to credibility), provides additional protections to accused (who isn t a W) who does NOT give evidence in situations where previous rep made by the accused has been admitted into evidence s 108C allows experts (Ws with specialised knowledge) to give E of/and (their) opinion about matters concerning C of Ws O potential overlap with s 106(2)(d) [E tending to prove W is, or was, unable to be aware of matters to which his/her E relates E of PCS may be adduced under s 108(3) in EIC to establish W s credibility in anticipation of attack upon it OR in Re-X to re-establish W s C (anticipation captured in s 108(3)(b)) but not in s 108(3)(a)) This order of events may NOT always be imposed - because accused had foreshadowed intention to C-X complainant to prove PIS (by conduct), it was permissible for Crown to seek and obtain leave to adduce E of PCS in EIC: R v Corbett PCS may be adduced from W who made it/or from any person to whom it was made: Yui Man Leung v R PCS sought to be admitted per s108(3) should be capable of meeting evidence/suggestion that they are tendered to refute: Graham v R HCA held it s important to identify how E relates to statutory premise for admission and exercise of discretion under s108(3) depends on effect of E on W s C. No requirement in s 108(3) that PCS must have been made at any particular time (e.g. close to events) BUT question of time and likely accuracy of maker s memory at that time and other factors influencing its reliability WILL be relevant to exercise of discretions in ss108(3), 135, 137 and 192: Yui Man Leung Gen rule: Main principal of fairness. Prosecution MUST present ALL evidence upon which its case relies before accused is called upon to defence charges: R v Chin Considerations: Pertinent to consider why Crown did NOT adduce evidence in its own case Whether accused has been given opportunity to alleviate unfairness involved in Crown splitting its case Significance of E, specifically whether it is marginally, minimally or doubtfully relevant : R v Chin Rebuttal E NOT allowed if judge considers that prosecution should have foreseen need for E during its case (and E was admissible) If prosecution had NO basis, then Ct may exercise discretion and permit re-opening and adducing rebuttal E: R v Gillard & Preston Where PIS is that of accused and it amounts to or includes admission that is admissible incumbent upon Crown to put statement in E before accused is called upon: Soma Judge generally permits prosecution to re-open to prove a non-contentious or purely formal matter : R v Chin

4 Re-Examination of Witness definition: per Part 2, cl2(3): reference to Re-X of W is reference to q ing of W by party who called W to give evidence, being q ing (other than further examination in chief with leave of court) conducted AFTER C-X of witness by another party Accrediting Own Witness During Re-X using PCS PCS ONLY admissible under s 108(3)(b) where it is reasonably open to find that W s evidence has been fabricated, reconstructed OR is result of suggestion: Graham Per Graham, factors that can hint at fabrication (versus C-X (during EIC) which is just q ing W s memory OR ability to observe events): W s denial of charges, the course of C-X and final question in C-X suggesting complainant was making it all up Whilst s 108(3)(b) often used in sexual offence cases to adduce evidence of complainant s previous complaint can serve dual purpose to complainant s C and directly to FII (e.g. R v BD) E of complaint in sexual offences and other assault cases directly relevant to issue of consent in SAME way as E of complainant s distress is relevant to consent: Papakosmas E of complaint made to alleged perpetrator MAY also be relevant otherwise than to C to contextualise responding admission: R v HJS Note: Doctrine of recent complaint in sexual offence cases and res gestae exception Exceptions to CR here: E adduced in Re-X: s 108(1) E of PCS rebutting PIS: s 108(3)(a) E of PCS to rebut suggestion of fabrication or reconstruction: s 108(3)(b) E of persons with specialised knowledge: s 108C Procedural Issues: Limits on questions that can be asked in Re-X: s 39 Limits on leading questions in Re-X: s 37 Rebuttal E adduced in accordance with s 106 Relevant Principles: There can be NO raising of new issues in Re-X w/o leave of court: R v Szach s 39 prescribes scope of Re-X construed as permitting Re-X ONLY where there is ambiguity or distortion arising from W s C-X: Schipp v Cameron where C-X discloses particular conduct (e.g. dishonesty), Re-X is permissible to explain motive for such conduct: R v Kelly notes could not be subject of Re-X where there had been NO C-X on any part of the notes and nothing required explanation or qualification by way of Re-X: Kosciusko v Milson Projects

5 Exception 1: E led in C-X a. s 103(1): E that could substantially affect assessment of credibility of witness during C-X of witness. 2 Non-limited matters court considers for (1): i. whether E tends to prove W knowingly/ recklessly made false rep when W under obligation to tell truth, AND ii. period lapsed since acts/events to which E relates done/occurred Application of s 103: R v RPS: Evidence adduced in C-X MUST have substantial probative value -i.e. rationally affect assessment of credit of witness R v Lodhi: Before E has SPV in respect of credit of W it MUST have potential to affect jy s assessment of credit of W in respect of E he/she given that credit of W cannot be determined adequately w/o regard to it MUST be connection between E admitted and credit of W at time of giving E that former likely to affect latter in substantial way. This imports matters as per s 103(3) to which Court has regard for whether E is of sufficient PV to justify admission notwithstanding CR. Determining SPV court regards whether E tends to prove that W knowingly/recklessly gave false E when under obligation to tell truth and to period of time that has lapsed since acts or events to which E relates occurred: s 103(2) + see Jacara Pty Ltd v Perpetual Trustees WA Ltd Leading Evidence in C-X Main RULE: A party can C-X W on matters relevant to C IF E could substantially affect assessment of W s C (s 103) BUT cannot lead CE (defined s 101A) W s final answer in C-X is final (s 102) (FR) Where E rejected: questions affecting ONLY C of W and are NOT relevant to FII, W s answers cannot be contradicted except in exceptional cases: Piddington Finality principle prevents doc or tape being admitted into E where its contents relevant only to W s credit: R v Bragg Evidence that may prove SPV + related principles: Bias and motive to lie: R v Uhrig to issue of credit. If denied, other evidence may be led to rebut denials per s106 Attack on W s C based on alleged motive to lie MUST be grounded on sufficient evidentiary foundation that such motive actually exists: R v WJT Implausibility of W s account: Leung v R purpose to demonstrate improbability of story is permitted per s 103(1) W s incapacity to observe/remember matters about which he/she has testified also would also comprise proper matters for C-X: HG v R PIS, equivocal or evasive answers and false representations made on earlier occasions: see s103(2)(b) Exception 2: E led to rebut denial in C-X s106 E that falls within s 106 exceptions (cred rule does NOT apply): i.(1) to E adduced otherwise than from witness if in C-X and court grants leave: (a) substance of E was put to W, and (b) W denied OR did NOT admit or agree to substance of E ii.(2) leave under (1)(b) NOT needed if E tends to prove witness: (a) is biased or has a motive for being untruthful, or (b) has been convicted of an offence, including an offence against the law of a foreign country, or (c) has made a prior inconsistent statement, or (d) is, or was, unable to be aware of matters to which his or her evidence relates, or (e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth. Requirements: W in respect of whom E is tendered must have denied its substance This necessitates C-X ing W about substance of E AND in turn requires E to satisfy SPV test in s 103: R v Mrish (per Hidden J)

6 Rule in Brown v Dunn (s106(1)) If C-X wants to challenge veracity of E of W A in a specific way (e.g. calling W B to contradict particular pt), C-X MUST raise that pt with W A on C-X. To comply with rule ONLY necessary to put substance of contrary version to W: White v Flower & Hart NO breach if W has prior notice that his/her account will be challenged and of the basis on which this will occur: Flower and Hart v White Industries On occasion, allegation may be so obvious that NOT necessary to put it formally to W: Thomas v Van Den Yssel Note remedies exist (see notes) s 106(2)(a): is biased or has a motive for being untruthful Mechanism of how this exception works: Suggestion of bias put to W and denied then pursued further ONLY by calling E which clearly established W s bias so testimony is clearly suspect An allegation of bias or partiality is one which tends to show motive for giving false E: R v Umanksi s 106(2)(b): prior convictions s 106(2)(c): has made a PIS Rebuttal of C-X s 106(2)(d): is or was unable to be aware of matters to which his/her E relates i. Threshold question: whether E in question is capable of amounting to a PIS: R v Wilson ii. There are procedures (s 43 (can be C-X ed w/o full particulars of statement being given to W OR not showing doc to W) and 45 (prod of docs)) for questioning W on previous statement, NOT about admissibility of E: R v RPS Note: failure to comply has implications for admissibility of E: Nicholls v R iii. Rule in Brown v Dunn applies (s106) Interpreted broadly as permitting E of a psychiatric report to be admitted indicating W was histrionic and dependent and prone to lying because this tended to show W did NOT know truth and would NOT want to know: R v Souleyman Construed to admit expert E on psychological conditions impacting on C: Farrell v R and now s 108c permits experts to give evidence concerning C of witness s 106(e): knowingly/recklessly made false representation while under obligation to tell truth Could allows E that W lied in current/previous proceeding (i.e. lied in C-X): Australian Automotive Repairer s Association v Insurance Australia Limited BUT this view discredited as making the other s 106 exceptions redundant: ALRC 102 i. Threshold: whether prior conviction sufficiently relevant to C to satisfy s 103 ii. If it is, conviction can be proved by way of certificate: s 178(3) criminality per se (w/o observable connection to C issue), does NOT have SPV for s 103: R v Fowler convictions in early 1980s for possession of an implement used for smoking marijuana and convictions for other drug offences for which fines were imposed did NOT have weight to C: Black Uhlans Inc offences of dishonesty including larceny, stealing and break, enter and steal were capable of having SPV to Crown W s C: R v Burns Contradiction between prior statement and E given at trial should be clear and direct Inconsistency may be proved by showing certain facts were omitted, or added, in the earlier statement: R v Titjewski s 43: C-X of W about own prior statements s 44: C-X on inconsistent statement of someone OTHER than W s 45: concerned with production and use of docs used in C-X ing Ws under ss43-44 Inconsistent statements of someone other than W By whatever manner doc produced and shown to W, clearest implication in question, whether, having read it, W still adheres to own testimony that the doc asserts to contrary of that testimony: Hunt CJ per R v Hawes