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Lecture 6

CREDIBILITY OF WITNESSES

102 The credibility rule

·  Prev: Evidence that is relevant only to a witness’s credibility is not admissible.

·  Now: Credibility evidence about a witness is not admissible.

s101A (amendment)

·  Def: Credibility evidence - evidence relevant to the credibility of the Wit 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.

·  Notes.

o  s 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted.

o  s 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.

EXCEPTIONS: USING CREDIBILITY EVIDENCE

1.  Attack the credibility of an opponent’s witness

2.  Bolster the credibility of your own witness

3.  Attack the credibility of your own witness, e.g. if they are ‘unfavourable’

s103: Exception: attacking the credibility of an opposing witness

1.  The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.

2.  Without limiting the matters to which the court may have regard for the purposes of subsection (1), it is to have regard to:

a.  whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth, and [question of honesty]

b.  the period that has elapsed since the acts or events to which the evidence relates were done or occurred. [question of memory]

BUT: CRIMINAL PROCEDURE ACT 1986 - SECT 293

·  If sexual assault victim – can’t admit evidence re sexual experience

s106: Exception: rebutting denials by other evidence (as amended)

1.  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:

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.

2.  (2) Leave under subsection (1) (b) is not required if the evidence tends to prove that the 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.

s108: Exception: bolstering credibility of your own witness

1.  The credibility rule does not apply to evidence adduced in re-examination of a witness.

2.  Repealed

3.  The credibility rule does not apply to evidence of a prior consistent statement of a witness if:

a.  evidence of a prior inconsistent statement of the witness has been admitted, or

b.  it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion,

and the court gives leave to adduce the evidence of the prior consistent statement.

Attacking the credibility of your own witness

·  S38: declare Wit unfavourable and leading questions don’t work (can’t make them fav again)

·  Then: can attack as if OS Wit:

o  S102: CR – can’t admit evidence re credibility

o  S103: unless - attacking the credibility of an opposing witness

o  S106: unless - rebutting denials by other evidence

·  Can attack by calling another Wit, whose testimony contradicts Wit 1’s.

o  RULE: Can contradict unfav Wit by adducing contrary evidence from another source (2nd Wit), but generally impermissible if it is SOLELY for purpose of discrediting 1st Wit: R v Welden (1977)

o  Eg. Vocisano v Vocisano (1974)

§  FACT: Car neg – overturn. P seriously injured but D unhurt. Issue: who was driving? D claim P driving. P sue D and D claim insurance. At trial, D change story to say D was driver. Insurance comp use D’s early claim to discredit his trial testimony.

§  ISSUE: is D’s early claim used solely to assess D’s credit, or prove existence of facts.

§  HELD: allowed.

·  Claim (written statement) admitted under documentary hearsay – doesn’t matter that it ADDITIONALLY discredited D’s testimony.

CREDIBILITY OF THE ACCUSED

104 Further protections: cross-examination of accused as to credibility

o  A can’t be cross-exam re their credibility – unless Ct gives leave: (2)

o  Leave is not required if cross-exam re: (3)

o  A’s bias/motive to be untruthful (a)

o  A unable to recall/be aware of matter (b)

o  A has made prior inconsistent statement. (c)

o  Leave may be given if:

o  Evidence show Pros Wit has tendency to be untruthful

o  Evidence relevant solely/mainly to Wit’s cred.

1.  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 only because it 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:

a.  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. [section continues…]

4.  Leave must not be given for cross-examination by the prosecutor about any matter that is relevant only because it is relevant to the defendant’s credibility under subsection (2) unless evidence adduced by the defendant has been admitted that:

(a) tends to prove that a witness called by the prosecutor has a tendency to be untruthful, and that

(b) is relevant solely or mainly to the witness’s credibility.

108B Previous representations of an accused who is not a witness

o  Same as 104 – except where A is not witness. Just using prev rep (eg. statement) of A.

1.  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:

(a)  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 previous representation relates, or

(c)  has made a prior inconsistent statement.

4.  The prosecution must not be given leave under subsection (2) unless evidence adduced by the defendant has been admitted that:

(a)  tends to prove that a witness called by the prosecution has a tendency to be untruthful, and

(b)  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:

(a)  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 knowledge

o  Does not apply to experts: (1)(a) AND

o  Evidence is based wholly/substantially on experts knowledge: (1)(b)(i) AND

o  Evidence could substantially affect cred of witness: (1)(b)(ii) AND

o  Ct gives leave: (1)(c)

o  Includes experts re child development/behaviour/abuse: (2)

(1)  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 person’s 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.

(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 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.

Adam v The Queen (2001) 183 ALR 625

·  FACT: A stab PO. Wit (Sako) give statements to police, but later unfav. Pros call Sako, knowing he is going to be unfav. A argue prior inconsistent statements not admissible.

·  HELD:

o  Pros xexam their own Wit – knowing he is unfav.

o  Prior inconsistent statements – relevant to his credibility

o  Prior inconsistent statements – relevant to facts in issues TOO.

o  THUS: credibility rule (s102) does not apply – no need to look at exceptions

o  THEN, bcos admitted for credibility use à admissable under s60 (non-hearsay use exception)

DOCUMENTS

·  If evidence in doc form (diagram, drawing, formula, USB, CD, photo), can:

o  Tender the document: s48(1)

o  Tender a copy: s48(1)(b)

o  Adduce evidence of its contents – if doc not available: s48(1)(a)

o  Tender a transcript – if sound recording: s48(1)(c)

o  Tender a summary – if doc too big: s50

·  Presumption: that doc is an accurate copy

REAL EVIDENCE

PART 2.3 - OTHER EVIDENCE

o  Evidence that is not a Wit or Doc (eg. murder weapon).

o  52. Adducing of other evidence not affected

o  53. Views:

o  J can order “demonstration, experiment or inspection”

o  Only if parties, judge, jury present.

o  Factors to decide if order:

o  If parties will be present,

o  Whether view assist Ct in resolving fact or understand evidence

o  Danger that view might prejudice, mislead, confuse, undue waste of time

o  If demo, extent that demo – can properly reproduce event/conduct

o  If inspection, extent that site has been materially altered.

o  54: Ct may draw any reasonable inference from what it sees, hears or otherwise notices during view.

Views:

R v Milat (1996) (unreported)

o  FACT: Site visit to forest (bodies found) – see location, nature of forest (no paths, well hidden etc), relative location of bodies.

o  HELD: whilst at “view” à STILL in Trial.

o  M in custody, but can’t be at site (would need to be handcuffed to guards) à prejudicial.

o  Commercial forest (changed since forest) à need to explain to jury the changes

o  Memorial of victims: covered up so not seen by jury.

o  Media/aircraft ban over area à prejudicial

R v Bilal Skaf, R v Mohammed Skaf [2004] NSWCCA 37

o  FACT: Convicted of multiple aggravated sexual assaults.

o  APPEAL: 2 jurors misconduct – went to view of park (investigate by themselves).

o  Park substantially changed since rape.

o  Ct decides not to view.

o  NOW: jury explicitly told not to investigate themselves.

Evans v R [2007] HCA 59

o  FACT: footage of robber with overalls/backlava

o  HELD: s53 ONLY covers Ct demos.

o  Inside Ctroom à CL rules.