The Credibility Rule: - PowerPoint Presentation

Slide1

The Credibility Rule:

When, Why and HowSlide2

Definitions

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.

Plain language translation:

How believable and reliable is (some or all of) the evidence from a witness?

Credibility of a person

is also defined. Essentially the same definition but applied to an out-of-court representation that has been admitted into evidence.Slide3

Evidence can be relevant

for MORE than one purpose

Evidence can be

relevant to

:

Fact in issue (FII)

Excl

rule

does not arise

FII &

Credibility

Excl rule MIGHT apply

Credibility only

Excl rule

WILL applySlide4

Section 101A: definition of credibility

(inserted in reaction to High Court decision in

Adam

)

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

(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.Slide5

The effect of s 101A

Where evidence

is relevant to

FII & CRED:

If ADMISSIBLE

for

its FII purpose

↓

Can also be used

for its credibility

purpose

(s 102 does not applyie not caught by the exclusionary rule)OR

If INADMISSIBLE

for its FII purpose

(

eg

due

to hearsay)

↓

The only allowable use

is for credibility

purpose

s 101A means

the

exclusionary rule (s 102)

will

apply

↓

Admissibility will require

an exception to

the credibility ruleSlide6

Exceptions to the exclusionary rule

Evidence that discredits:

a witness during XX:

s 103

an accused during XX: s 104

a witness by adducing evidence to rebut a denial of a credibility impeachment: s 106

by adducing evidence from an expert re credibility: s 108C

Evidence that accredits:a witness/accused in re-ex & prior consistent statements:

s 108by adducing evidence from an expert re credibility: s 108C

Credibility of non-witnesses whose representation has been admitted into evidence:for all people: s 108Afor an accused (in addition to s 108A): s 108BSlide7

s 103 Exception: XX as to credibility

(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 (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.Slide8

s 104 Further protections: XX the accused

(1) Applies in addition to s 103.

(2) Leave is to be sought to XX the defendant on a matter relevant to

cred

(3) Pros

do not need leave if XX goes to whether the defendant:

Is

biased or has a motive for being untruthful, or Is, or was, unable to be aware

of or recall matters to which evid relates, or (c) Has made a prior inconsistent statement.Leave not to be given under (2) unless def presented evidence that:tends to prove that a witness called by the pros has a tendency to be

untruthful; and is relevant solely or mainly to the witness’s credibility. Ref in (4) does not include evidence of conduct in relation to:(a) events relating to the defendant’s prosecution; or(b) the investigation of the matter being prosecuted.(6) Leave not to be given in relation to a co-accused unless: …NB Section 192Slide9

S 106 Exception: rebutting denials with other evidence

(1) The credibility rule

does not apply

to evidence relevant to a witness’s credibility, adduced otherwise than from the witness

if:(a) in XX of the witness:

the

substance of the evidence was put to the witness, & the witness denied

, or did not admit or agree to, the substance of the evidence, &

(b) the court gives leave to adduce the evidence.

(2) Leave under (1)(b) is not required if the evid tends to prove the W: (a) is biased or has a motive for being untruthful, or (b) has been convicted of an offence, (incl foreign country), or (c) has made a prior inconsistent statement, or (d) is, or was,

unable to be aware of matters that his/her evid relates, or 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.NB Section 192Slide10

Evidence that Discredits

Evidence relevant (or admissible) only to credibility

↓

The exclusionary rule deems

inadmissible: s 102↓

Admiss if the questions

substantially affect assessment of the W’s cred

: s 103 test

Additional protections (and consequences) for accused: s104

↓Adduce rebuttal evid from another source if W denies etc the content of the assertion: s106Slide11

s 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. NB Section 192Slide12

Evidence that Accredits

Evidence relevant (or admissible) only to credibility

↓

The exclusionary rule deems

inadmissible: s 102↓

During re-examination (RX)

questions relating to credibility permissible: s 108(1)And/or

Prior consistent statements (PCS) (RX or ex-in-chief):

s 108(3)(b)↓PCS admiss

to rebut a PIS or suggestion of lying↓NB Leave required for PCS (s 192)Slide13

In summary

Does the credibility evidence exclusionary rule apply?

Definitions of credibility/credibility evidence:

Dictionary

When the exclusionary rule will apply: ss

101A and 102Does the evidence discredit?

XX a witness: s 103XX of an accused:

s 104Evidence to rebut the denial of a witness during XX: s 106

Evidence from an expert re credibility: s 108CDoes the evidence accredit?

Re-ex & PCS: s 108Evidence from an expert re credibility: s 108CDoes the evidence relate to a rep from a person who has not been called as a witness?All people except the accused: s 108AAdditional protections for an accused: s 108BDoes the adducing of the evidence require an application for leave?Factors for consideration: s 192