CREDIBILITY EVIDENCE
• Credibility rule:
o Involving a PIS: [PARTY] intends to adduce evidence of a PIS made by W for the sole purpose of undermining the credibility (i.e. truthfulness or reliability) of his/her testimony [AND FOR ANOTHER INADMISSIBLE PURPOSE] (s 101A). Thus, it is prima facie inadmissible (s 102).
o Involving a PCS: [PARTY] intends to adduce evidence of a PCS made by W for the sole purpose of supporting the credibility (i.e. truthfulness or reliability) of his/her testimony [AND FOR ANOTHER INADMISSIBLE PURPOSE] (s 101A). Pursuant to Cooke and s 102, this statement is prima facie inadmissible.
o In re-examination: Credibility rule does not apply s 108(1)
o Sexual history of a complainant: [EVIDENCE] is evidence of C’s (sexual off.) sexual history and is therefore not a proper matter for XE as to credit. There [ARE,
HOWEVER,/ARE NO] special circumstances that support a conclusion that evidence of C’s sexual history is likely to materially impair confidence in the reliability of C’s
evidence (s 352 CPA)
• Exception if admissible for another purpose: The evidence is not ‘credibility evidence’ under s 101A if it is admissible for another purpose. Therefore the credibility rule (s 102) does not apply notwithstanding whether or not the evidence is used for a credibility purpose.
• Exception for XE: However, P/D may seek to XE W about [MATTER – e.g. making a PIS]
on the basis that such evidence is admissible under the s 103 exception to the credibility rule because it could substantially affect the assessment of W’s credibility.
• It is [LIKELY/UNLIKELY] that the evidence would substantially affect the jury’s assessment of W’s credibility because:
(a) It [DEMONSTRATES/DOES NOT DEMONSTRATE] that he/she knowingly or recklessly made a false representation when under obligation to tell the truth (s 103(2)(a)); and/however
(b) The [PIS/OTHER EVIDENCE] was made a relatively [SHORT/LONG] time ago (s 103(2)(a)).
o If exception applies: As such, the evidence is also relevant for the purposes of s 55
• Exception for re-establishing credibility:
o If evidence of PIS is admitted: W has admitted to making a PIS in cross-examination.
The PCS is therefore indirectly relevant under s 55 as it could rationally affect the assessment of the probability that W is a credible witness. P/D must seek leave of the court to adduce this evidence (s 108(3)(a); Clements).
▪ General leave factors: Refer to factors in s 192(2) below with respect to s 108(3) order.
o If allegation of ‘recent invention’: Counsel [HAS SUGGESTED/WILL SUGGEST] that W’s evidence [HAS BEEN FABRICATED OR RECONSTRUCTED (i.e. is a ‘recent invention’) /IS THE RESULT OF A SUGGESTION] (Clements). The PCS is therefore indirectly relevant under s 55 as it could rationally affect the assessment of the
probability that W is a credible witness. P/D must seek leave of the court to adduce this evidence (s 108(3)(b)).
▪ Rationally answers attack: [PARTY] may argue that the PCS [DOES/DOES NOT]
rationally answer the allegation of recent invention because it [IS/IS NOT] more contemporaneous to the time of the offence than the PIS (Clements).
▪ General leave factors: Refer to factors in s 192(2) below with respect to s 108(3) order.
• Requirement for leave where W is the D: As the W is the D, P must generally seek leave before cross-examining him/her as to credit (s 104(2))
o Shortcut: However, P may circumvent this requirement for leave per s 104(3)[(a)/(b)/(c)]) by cross-examining D about whether he/she:
(a) Bias/motive to be untruthful: is biased or has a motive to be untruthful
(b) Ability to recall: is or was unable to recall matters to which his or her evidence relates
(c) PIS (most common): has made a PIS (if W denies making PIS, look so ss 34, 106(2))
• Attacking the credibility of maker of HS statement: Use s 108A (substantially same as s 103) and s 108B (substantially same as s 104)
• Granting leave:
o For XE by the P: Leave for P to XE D may only be granted under s 104(2) if D has admitted evidence that (s 104(4)):
(a) tends to prove a prosecution witness has a tendency to be untruthful;
(b) is relevant solely or mainly to W’s credibility.
AND this evidence is not about
(a) the events in relation to which D is being prosecuted; or
(b) the investigation of the offence for which D is being prosecuted
o For XE by a co-defendant: Leave may only be granted for [CO-ACCUSED] to XE D under s 104(2) if D has admitted evidence that is adverse ‘in a material respect’
(Murdoch) to [CO-DEFENDANT] (s 104(4)):
o General leave factors: The court will (also) consider general leave factors under s 192(2):
(a) Impact on trial length: [XE OF D/ORDER UNDER S 108(3)] [WOULD/WOULD NOT] unduly lengthen the hearing
(b) Unfairness to party or witness: [XE OF D/ORDER UNDER S 108(3)]
[WOULD/WOULD NOT] be unfair to [P/D/W]
(c) Importance of evidence: more important = more likely to grant leave (d) Nature of the proceeding: more serious = more likely to grant leave (e) Power to adjourn or make another order
• If XE is about PIS: [PARTY] does not need to provide W with [DOCUMENT/PARTICULARS] of the PIS, if W does not admit to making PIS.
• Further, [PARTY] [HAS INFORMED/MUST INFORM] W of enough of the circumstances of the making of the PIS to enable him/her to identify the statement and bring to W’s attention the parts inconsistent with his/her evidence (s 43(2); Browne v Dunn)
o If D (criminal) is adducing: D may argue that the CL rule should not apply too strictly because D does not bear onus of proof (MWJ).
• If this is established, [PARTY] may adduce evidence from other Ws without leave of the court per s 106(2)(c) (see below)
o Jury directions for PIS: Reliability warning under s 32 JDA; Direction re credibility (if sexual offence) under s 54D JDA
• Finality principle:[PARTY] is generally bound by the answers to credit questions and cannot lead rebutting evidence from other Ws if W denies the allegation (Palmer)
o Exception where W denies evidence: However, the finality principle may be overcome using s 106(1) to allow [PARTY] to adduce evidence to rebut W’s evidence because W has [DENIED/FAILED TO ADMIT] to the evidence after the substance of the evidence was put to him/her. Leave is generally required to do so (s 106(1)(b)).
o Leave is not required for [PARTY] to adduce rebutting evidence under s 106(1) if [EVIDENCE] tends to prove that the W (s 106(2)):
(a) Bias/motive to be untruthful: is biased or has motive for being untruthful; or (b) Convicted of offence: has been convicted of an offence; or
(c) PIS (most common): has made a prior inconsistent statement (consider requirements of s 43 above); or
(d) Awareness of matters: is or was, unable to be aware of matters to which his/her evidence relates; or
(e) Perjury: has knowingly or recklessly made a false representation while under a legal obligation to tell the truth
o Jury directions for PIS: Reliability warning under s 32 JDA; Direction re credibility (if sexual offence) under s 54D JDA
CHARACTER EVIDENCE OF ACCUSED IN CRIMINAL PROCEEDINGS
• Relevance: [EVIDENCE] is logically relevant and prima facie admissible as it could rationally affect the assessment of [FII, choose from below] (ss 55(1), 56(1)).
o D’s propensity to commit the crime charged: because [CHARACTER EVIDENCE] could rationally affect the assessment of the probability that D committed [CRIME CHARGED] (Melbourne - ‘gentle nice man’
evidence could rationally lead to inference that it was less probable that D committed murder)
o D’s credibility: [CHARACTER EVIDENCE – e.g. evidence of prior convictions] could rationally affect the assessment of the probability that D’s denials worthy of belief (Melbourne - ‘gentle nice man’
evidence was NOT relevant to re-establishing credibility because being nice does not make D more believable)
• Exclusions: Despite the likely relevance of the evidence, D may argue that the court:
o Should limit its use because it may be unfairly prejudicial, misleading or confusing (s 136);
o Must exclude it because its probative value is likely outweighed by the danger that it will unfairly prejudice [PARTY] (s 137).
• Adducing good character evidence: D (crim) has an ‘unconditional right’
(Melbourne) to admit general or specific good character evidence under s 110(1) (and the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply)
o good character may go to issue: Braysich
• Adducing bad character evidence: [EVIDENCE] is bad character evidence which is prima facie inadmissible pursuant to the tendency rule (s 97).
o Co-accuseds: CO-D, through expert opinion wholly or substantially based on W’s specialised knowledge/training, may adduce bad
character evidence of other D without reference to hearsay or tendency rules (s 111(1); Lowery)
• Rebutting good character evidence: However, because D has adduced evidence of his/her good character:
o General: generally, P/CO-D may likewise adduce evidence that he/she is not of good character generally per s 110(2) (and the hearsay, opinion, tendency and credibility rules do not apply)
o Specific: in respect of [PARTICULAR RESPECT], P/CO-D may likewise adduce evidence that he/she is not of good character in that respect (but not generally) per s 110(3); Zurita (and the hearsay, opinion, tendency and credibility rules do not apply)
▪ Zurita – no prior convictions for non-sexual offences, could only rebut with evidence of convictions for non-sexual offences.
o Mere allegation: An allegation made against D is not evidence of bad character (Newman)
o Co-accuseds: CO-D may rebut bad character evidence adduced by [OTHER CO-D] without reference to the hearsay or tendency rules (s 111(2))
• Leave for XE about character: [PARTY] must seek leave of the court to XE about the character of D/CO-D (s 112):
o General leave factors: The court will (also) consider general leave factors under s 192(2):
(a) Impact on trial length: XE of D [WOULD/WOULD NOT] unduly lengthen the hearing (Stanoevski – extended inquiry for collateral purpose seen to unduy lengthen proceedings)
(b) Unfairness to party or witness: XE of D [WOULD/WOULD NOT] be unfair to [P/D/W] (Stanoevski – inquiry distracted jury and raised issues of credibility involving alleged offence with co-conspirator who was not available for XE)
(c) Importance of evidence: more important = more likely to grant leave (Stanoevski – evidence was merely an investigative report into forgery, not a prior conviction)
(d) Nature of the proceeding: more serious = more likely to grant leave (e) Power to adjourn or make another order
