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CREDIBILITY TOPIC 3 AND 4
Chapter 11
Jessica Pinkus



2
Credibility Evidence (week 3 and 4)
Gans and Palmer chapter 11

1. The Nature of Credibility Evidence

- Credibility evidence (CE) is evidence that relates to the credibility of a witness
- Dictionary in uniform evidence legislation (UEL) definition:
o Credibility of a witness means the credibility of any part or all of the
evidence of the witness, and includes the witnesss ability to observe
or remember facts and events about which the witness has given, is
giving or is about to give.
- CE is an example of ancillary evidence - evidence that has only a derived
relevance to the facts in issue.
- Any particular item of ancillary evidence may also be relevant to the facts in
issue.
- CE therefore includes all of the following:
o E relating to the witnesss general honesty, expertise or standing in
the community;
o E showing that, in the circumstances of a particular case, the witness
has a motive to lie;
o E showing that the witnesss evidence is either consistent or
inconsistent with other statements the witness has made about the
events in question;
o E tending to show that the witness is lying or mistaken in relation to
some or all of their testimony, including evidence to show that the
witness is lying or mistaken in relation to some collateral detail of his
or her testimony; or
o E relating to the witnesss capacity for accurate observation and
recollection.


2. The Relevance of credibility Evidence

- CE is relevant because anything that affects the probability that a witness is
telling the truth obviously affects the probability of the existence of the facts
to which he or she is testifying
- The relevance of CE is recognized by s55(2) of the UEL evidence is not
taken to be irrelevant only because it relates to: (a) the credibility of a
witness
- Given the importance of CE there is an argument that CE should be admitted
freely if the tribunal of fact must choose between 2 witnesses this,
however, would lead to a proliferation of issues at trial comment by Rolfe
B from Attorney General v Hichcock p201.
- For this reason there are severe restrictions on the use of credibility
evidence.
3

3. The Admissibility of credibility evidence

Overview of the credibility rules:

- s102 provides that: CE about witness is not admissible
- s108 further provides that CE about the maker of a previous representation is
not admissible.

Scope of the credibility rules: s 101A:

- The exclusionary rules In ss 102 and 108A only apply if the evidence is CE
- Phrase defined in s101A:

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:
(a) is relevant only because it affects the assessment of the credibility of the witness or person, or
(b) is relevant:
(i) because it affects the assessment of the credibility of the witness or person, and
(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of
Parts 3.2 to 3.6.


The combined effect of ss 101A, 102, and 108A is as follows:
1. Evidence that is only admitted for a credibility purpose cannot be used for
that purpose unless it falls within the scope of one of the exceptions to the
credibility rule in Part 3.7
2. Evidence that has dual relevance and that is admissible for a non-credibility
purpose can also be used for the credibility purpose without having to
comply with the provisions of Part 3.7 (subject only to the TJs discretion to
limit the use of the evidence [pursuant to s136] or to exclude it altogether
[pursuant to ss 135 and 137])
3. Evidence that has dual relevance but that is inadmissible for the non-
credibility purpose can only be used for the credibility purpose if it falls
within the scope of one of the exceptions to the credibility rule in Part 3.7;
but
4. Where the effect of an exclusionary rule is to prohibit the admission of the
evidence altogether (as opposed to a particular use of the evidence), the
evidence cannot be used for any purpose including a credibility purpose
(such as ss 84, 85, 86 and provisions in Parts 3.9 identification evidence and
Parts 3.10 Privileges)

- s 101A thus recognizes 2 categories of CE, both of which are subject to the
exclusionary rules in ss 102 and 108A, and which can only therefore be used
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for a credibility purpose if they fall within the scope of one of exceptions to
the credibility rule in part 3.7:
o First category of CE evidence that is only relevant because it affects
the assessment of the credibility of the witness or person.
o Second category of CE evidence that has a dual relevance, being
relevant to the assessment of the credibility of a witness, and also
relevant (but not admissible) for another purpose.
Evidence that has dual relevance and that is admissible for the
other purpose is not CE and is not subject to the rules in Part
3.7

The distinction between relevance to credibility and relevance to issue:

- In order to apply ss 101A, 102 and 108A it is necessary to identify the
purpose for which evidence is relevant to the credibility of a witness or
person and whether it is relevant in any other way.
- In HG v R [1999], Gummow J held that evidence lead by the defendant from a
psychologist to the effect that the complainant might have been assaulted by
her natural father was only relevant to the complainants credibility:
o In the present case, Mr McCombies opinion that the complainant
may have been sexually assaulted on another occasion may explain
her knowledge of such matters. Accordingly, it is capable of
detracting from the credibility which might otherwise attach to her
evidence. However, it has no other significance.
- Effect of such a finding is to bring the evidence within the first category of the
CE recognized in s 101A, which in turn means that the evidence would be
inadmissible pursuant to the credibility rule in s102 unless it is also within the
scope of one of the exceptions to the credibility rule.
- One way of testing whether the matter is relevant only to the credibility of a
witness is to ask whether the party would have been permitted to lead
evidence in chief regardless of whether or not the particular witness was
giving evidence.
o If the relevance of the evidence is dependent on the contingency that
particular person is a witness, or has given particular evidence then
it is likely that the evidence is only relevant to the credibility of that
witness.

4. Cross-examination as to credibility

- it is primarily through cross examination (XE) that evidence designed to
impeach the credibility of a witness can be led
- this means that the evidence must be adduced from the very witness whose
credibility is being impeached.
- A question asked on the basis that it is relevant to the credibility of the
witness will only be permitted if it is in fact relevant for this purpose, and it
5
will only be relevant if the truth of the allegation would indeed be likely to
lower the standing of the witness in the eyes of the tribunal of fact.

Section 103:
- Under UEL the cross examination would have to be likely to affect the
standing o the witness in a substantial way

s103 mandates a more restrictive approach to XE about credibility than applied
at CL, providing that:

The cred rule does not apply to evidence adduced in XE of a witness if the
evidence could substantially affect the assessment of the credibility of a witness

- The higher threshold was justified by the Australian law reform commission
page 207
- Without limiting the matters to which the court may have regard in deciding
whether the evidence could substantially affect the assessment of the cred of
the witness s103(2) requires the court to have regard to:
(a) whether the evidence tends to prove that the witness knowingly
or recklessly made a false representation when the witness was
under an obligation to tell the truth; and
(b) the period that has elapsed since the acts or events to which the
evidence relates were done or occurred.

- in light of s106 (which replaced the CL rules) which lists a number of matters
that may be proved without leave if denied by the witness, it is suggested
that cross-examination would be permitted under 103 on the following
matters:
o capacity and opportunity for accurate observation and recollection;
o bias or motive for being untruthful;
o convictions, but only those which are both reasonably recent and
which involve an element of dishonesty;
o the making of prior inconsistent statements about the events in
question, and inconsistencies and contradictions internal to the
evidence; and
o occasions where the witness has, while under an obligation to tell the
truth, failed to do so.
- Not every failing of character will pass the test in s103 in CL case of Bickel v
John Fairfax:
o Hunt J refused to allow questions about a witnesss alleged extreme
political beliefs this is not XE for the purpose of showing that by
reason of his lack of veracity a witness should not be believed on
oath; this is XE for the purpose of prejudicing the tribunal of fact
against that witness as a person.
o Such XE is not permitted under the UEL.
6
- Sometimes a witness may turn out to be unfavourable in these
circumstances a party may be allowed to XE witness with leave of the court
including XE on matters only relevant to credibility.

5. Rebutting denials by other evidence

- what happens when a witness denies an allegation put to them (that if true
would damage their credibility) question of whether the cross examiner can
then lead evidence to prove the truth of the allegation
- General Rule the cross examiner cannot lead evidence to prove the truth of
the allegation although there are several exceptions to this general rule.

The general rule:
- The general rule is that the XE-er cannot prove the truth of an allegation
denied by the witness, where the allegation is only relevant to the witnesss
credibility
- If the matter is not relevant only to the credibility of the witness, then the
cred rules will not prevent the party from proving it.
- Finality Rule (described by McHugh J) The rule stipulates that answers
given by a party or witness in XE regarding collateral facts such as credit must
be regarded as final
- At CL known as collateral issues rule
- Effect of the rule is that the XE-er is bound by the witnesss answer on
matters relevant only to credibility.
- Does not mean however that the tribunal of fact is bound to believe it
though!
- The main difficulty in applying the rule is in determining whether the matter
to which the questions relate is indeed a collateral issue.
- One way of testing whether the evidence is relevant only to the credibility of
a witness is to ask whether it is sufficiently relevant to the facts in issue that
the party would have been permitted to lead evidence of the matter in its
case in chief test suggested by Pollock CB in Attorney General v Hitchcock
- Finality rule test can be difficult to apply as suggested by McHugh J there is
a need for more flexibility
- This was reflected in the 2008 amendments to the s 106 of UEL

Exceptions to the Rule:
- under the UEL, the exception to the general rule are contained in s106 in
two parts:

(a) in cross-examination of the witness:
(i) 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.

7
- sub-section (1) which is new, creates a generalized exception that requires
the leave of the court
- Sub-section (2) then sets out a series of specific exceptions to the rule,
where leave of the court is not required.

Triggering the operation of the exceptions:

- two procedural pre-conditions must be met before a party will be permitted
to rebut a denial by other evidence
- these are set out in s 106(1)(a), and are as follows:
o in XE the substance of the evidence must have been put to the
witness; and
o the witness must have denied, or not admitted or agreed to, the
substance of the evidence.
- Crts have sometimes taken a very strict approach to the first pre-condition
that the substance of evidence be put to the witness as in Australian
Automotive Repairers Association (2006) p.211

Applying the exceptions:
- the list of specific exceptions in UEL are similar but not identical to the list at
CL fir this reason the CL will continue to provide some assistance to the
court in applying the statutory exceptions set out in s106

Bias or motive for being untruthful:
- based on CL exception to collateral issues rule
- in Nicholls v R; Coates v R Hugh J discussing that excpetion, referred to
Wigmore on Evidence as justification for recognizing 3 kinds of motives to be
untruthful namely bias, interest or corruption:
o Evidence rebutting a witnesss evidence may be adduced where the
witness is affected by one of three kinds of emotions constituting
untrustworthy partiality, namely bias, interest or corruption.
Bias in the sense of all varieties of hostility or prejudice
against the opponent personally or of favour to the proponent
personally;
Interest in the sense of the specific inclination which is apt to
be produced by the relation between the witness and the
cause at issue in the litigation; and
Corruption in the sense of the conscious false intent which is
inferable from giving or taking a bribe or from expressions of a
general unscrupulousness for the case in hand.
- Some disagreement as between members of the HC as to whether corruption
fell within the bias exception under UEL this result could be achieved
either by treating corruption as falling within the terms of s106(2)(a) or by
the court granting leave to adduce the evidence pursuant to s106(1)(b).

Prior convictions para 106(2)(b):
8
- para 106(2)(b) applies to evidence that tends to prove that a witness has
been convicted of an offence against the law of a foreign country
- exception only applies when the XE-er has been permitted to XE the witness
about the matter pursuant to s103 - and the witness has denied it.
- In accordance with s103 XE about prior convictions is only permitted if
those convictions could substantially affect the assessment of the credibility
of the witness.

Prior inconsistent statements para 106(2)(c):
- applies to evidence that tends to prove that a witness has made a prior
inconsistent statement
- the manner in which a prior inconsistent statement must be proved is
governed by s43 (Chapter 2)
- once admitted in exception to the credibility rule, the prior inconsistent
statement can also be used for its truth due to the operation of s 60.

Capacity to be aware of matters to which the evidence relates:
- applies to evidence that tends to prove that a witness is, or was, unable to
be aware of matters to which his or her evidence relates
o example witness gives evidence that they saw an event at a distance
of 50 yards away - possible to lead evidence that they could not
possibly have seen anything greater than 20 yards away
- exception does not permit the XE-er to lead evidence where the witnesss
inability to be aware of maters to which his or her evidence relates arises
from defects in their capacity for recollection that is, their memory.
- Nevertheless, the exception in para (d) is not limited to matters such as
evidence from an oculist concerning short-sightedness of a witness, but also
covers an incapacity caused by some disease or defect or abnormality of
mind that affects the reliability of [his or her+ evidence (Toohey v Comm of
metro police *1965+), and other relevant psychological, psychiatric or
neurological considerations, such as evidence in the form of a psychiatric
report to show that a witness has a histrionic and dependent, and prone to
lying, on the basis that it tended to prove that the witness would neither
know the truth nor want to know the truth (R v Rivkin *2004+).

Making of previous false representation para 106(2)(e):
- Applies to evidence that tends to prove that a witness has knowingly or
recklessly made a false rep while under an obligation imposed by or under an
Australian law or a law of a foreign country, to tell the truth
- Not based on a CL exception to the collateral issues rule
- This exception in para (e) is narrower than the factor to which the crt may
have regard pursuant to s103(2)(b), bc para (e) is only triggered when the
obligation to tell the truth was one that was imposed by or under an
Australian law or a law of a foreign country.
- Prima facie could enable the admission of E to prove that any answer given
by a witness in XE in the proceedings itself was a lie however this make all
other exceptions redundant
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- For that reason exception in para (e) would not apply to false rep made by
a witness during the course of his/her evidence

The general exception where the leave of the court is required:
- if the E does not come within any of the specific exceptions set out in
s106(2), then the XE-er can still seek the crts leave to rebut the witnesss
denial in reliance on s106(1)
- where the crts leave is sought, the crt is required to take into account
matters set out in s192, providing:

Rebutting the rebuttal:

- where the XE-er has been permitted to lead evidence to rebut a witnesss
denial of a matter relevant to credibility, the party that called the witness
may wish to respond to the E ked in rebuttal.

6. Re-establishing credibility

- if a witnesss cred has been impeached, then the party calling the witness
may be permitted to lead E to restore or re-establish the witnesss credibility,
even though such E would not have been permitted to be led in chief.

Re-Examination (RX):
- s108(1) of the UEL provides that the cred rule does not apply to E adduced in
RX of a witness.
- However s39 limits RX to matters arising out of E given by the witness in
XE or in relation to which the crt gives leaves.
- Means that s108(1) will usually only allow cred E to be led about matters that
were dealt with in XE.

Prior consistent statements s108(3):
- if the prior consistent statement has already been admitted for its truth
pursuant to one of the exceptions to the hearsay rule that apply to previous
representations made by a witness, then it does not come within the scope
of the credibility rule in s102 and can also be used for its credibility purpose.
- Section 108(3) is in the following terms:

The credibility rule does not apply to evidence of a prior consistent statement of a witness if:
(a) evidence of a prior inconsistent statement of the witness has been admitted, or
(b) it is or will be suggested (either expressly or by implication) that evidence given
by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or
is the result of a suggestion,
and the court gives leave to adduce the evidence of the prior consistent statement.


10
Where a prior inconsistent statement has been adduced:
Section 108(3) effectively creates 2 exceptions
o First - applies when a prior inconsistent statement has been used to
impeach credibility and allows the use of a prior consistent statement
to restore it.
Australian law reform commission purpose of admitting the
prior consistent statement in such circumstances is not to
rebut the fact that a prior inconsistent statement was made,
but to weigh against the effect of the inconsistent statement
in the assessment of the witness credibility
Evidence of the prior consistent statement could be adduced
from the witness him/herself, or from another witness who
perceived the making of the prior consistent statement.
Allegation of fabrication and reconstruction:
o Second based on CL rule, which permits a party to lead evidence of
a prior consistent statement in order to rebut an allegation of recent
invention.
UEL exception applies when it has been (or will be) suggested
to the witness that their evidence is a fabrication,
reconstruction or is the result of suggestion.
There is no warrant for reading into the provision a
requirement that fabrication be explicitly raised or strongly
inferred before the credibility rule is waived.
o Reference to Pavitt case page 218.

Granting of leave:
- With both of the exceptions in s108(3), however, E of the prior consistent
statement can only be adduced if the crt gives leave.
- The most important consideration in the exercise of this discretion will be the
relevance that the prior consistent statement has to the attack made on the
credibility of the witness.
- Graham v R ([1998]:
o first, s108 creates an exception to the cred rule - the rule that E that
is relevant only to a witnesss cred is not admissible. Second, it is
important to identify how the E relates to the statutory premise for its
admission.
- As the exercise of the discretion depends on the effect of the evidence on the
witnesss credibility, the timing of the prior consistent statement is likely to
be of particular importance in determining whether leave should be granted
to admit it.
- Circumstances in which a prior consistent statement was made can
sometimes be as significant as the timing R v MDB [2005]:
o logically, it will often be the case that E of a prior consistent
statement will assist in the determination of credibility where, for
example, the suggestion of fabrication is tied to a time or event or
circumstance, and the prior consistent statement can be shown to
predate that time or event or circumstances.
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- R v Cassar [1999]:
o A statement made in that context would have a probative value
beyond mere assertion, in advance, of what was later said in
evidence. It could rebut the suggestion of fabrication.

7. The credibility of hearsay

- s108A of the UEL addresses some of the concerns about the reliability of
some hearsay evidence admitted by allowing credibility evidence to be led in
relation to the person who made the representation.

S108A(1) is in the following terms:
If:
(a) 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 persons credibility.

- credibility evidence has the same definition in s108A as it does in the rest of
part 3.7.
- s108A is an exclusionary rule with an exception that allows a party to lead
evidence relevant to the credibility of the maker of a previous representation
where the E could substantially affect the assessment of that persons
credibility
- the test in s108A could the evidence substantially affect the assessment of
the persons credibility is the same as the test in s103 which applies to
cress examination as to credibility
- s108A(2) stipulates the same two matters which the court is to have regard
for the purpose of s108A(1) as s103(2) does in relation to s103(1). These are:

Without limiting the matters to which the court may have regard for the purposes of
subsection (1), it is to have regard to:
(a) whether the evidence tends to prove that the 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.

- same threshold applies to credibility evidence adduced in the XE of a witness
(with respect to which s103(1) applies) and credibility evidence relating to
the maker of a rep who is not available.
- The factors set out in s108A(2) suggest that s108A is primarily intended to
permit the party against whom a previous rep is admitted to impeach the
cred of the maker of the rep.
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- If negative cred E is admitted however, then the party that adduced E of the
rep might be permitted to lead positive cred E to rehabilitate the cred of the
maker of the rep
o But in the absence of such an attack difficult to imagine cases where
a court would hold that evidence designed to bolster the credibility of
the maker of the rep could substantially affect the assessment of the
persons cred.

8. Expert evidence

- if the party can XE the witness pursuant to s103 about the matter, and the
witness denies the matters put to them so a to satisfy the requirements in
s106, then the party may be able to lead expert testimony to rebut their
denials pursuant to either s106(1) or s106(2)(d).
- inadequacy in the was in which expert evidence can be admitted due to a
lack of compatibility in some cases- ALRC recommended the intro of s108C as
a further avenue for the leading of expert E relevant to cred with s108C(1)
creating a further exception to the cred rule for:

The credibility rule does not apply to evidence given by a person concerning the credibility
of another witness if:

(a) the person has specialised knowledge based on the persons training, study or
experience, and
(b) the evidence is evidence of an opinion of the person that:
(i) 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.

- E can be adduced under s108C either to impeach or to support the cred of a
witness provided that the court gives leave.
- Expert opinion relating to the cred of a witness must therefore satisfy the
requirement of both the opinion rules in part 3.3 and the exception in s108C
in order to be admissible.
- However the language of paragraphs (a) and (b)(i) of s108C(i) is obviously
based on that of s79
o This means that E which satisfies those conditions will also satisfy the
conditions for admission contained in part 3.3.
- Sub-section (2) of 108C is in identical terms o s79(2):

To avoid doubt, and without limiting subsection (1):

(a) 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
13
the following:
(i) 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.

- EXAMPLES OF EXPERT EV THAT MIGHT BE ADMITTED UNDER S108C ON PAGE
224.

9. The credibility of complainants in sexual offence trials

- special rules that apply only to the complainant in a sexual offence trial.

Delay:
- where there has been some delay in disclosing or reporting a sexual offence,
defence counsel may cross examine the complainant with a view to showing
that she/he did not make a complaint at the earliest possible opportunity.
- The HC has held that the absence of, or delay in making, a complaint is
irrelevant to the issues in a rape trial, but that it is relevant to the credibility
of the complainant.
- If raised by defence counsel - Stat provision in several jurisdictions now
require the judge to appropriately warn the jury that delay in complaining
does not nec mean that the allegation is false.
- Jury must also be warned if the defendant has suffered some forensic
disadvantage bc of the delay s165B
- Provision is not restricted to sexual offences, and can apply in crim
proceedings where there has been delay in bringing the prosecution.
- If the crt is satisfied that the defendant has indeed suffered a significant
forensic disadvantage then the crt can (but need not) give such a direction;
o But the crt must not suggest to the jury that it would be dangerous or
unsafe to convict the defendant because of the delay or because of
the forensic disadvantage suffered because of the delay.

Sexual History Evidence:
- various ape shield provisions place prohibitions on certain types of questions,
usually those relating to the sexual activities or sexual experience of the
complainant.

NSW:
- in NSW the relevant provisions deal with the cross-examination of the
complainant generally, and make no specific provision for evidence said to be
relevant to credibility.
- There are, however, two conditions that if met, would arguably allow the
complainant to be cross -examined in relation to sexual history for a
credibility purpose.
o Firs condition it has been disclosed or implied in the prosecution
case that the complainant has, or may have, during a specified period
14
or without reference to any period had sexual experience, or a lack
of sexual experience, of a general or specified nature; or taken part in
or not taken part in sexual activity of a general or specified nature.
o Second condition is that the defendant might be unfairly prejudiced
if the complainant could not be cross-examined in relation to the
disclosure of implication criminal procedure act 1986 (NSW) ,
s293(6).