Credibility Lecture on 3 August 2015

Miiko Kumar

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Material from last lecture

• Melbourne v The Queen

• Stanoevski v The Queen

• Past sexual history of the complainant in sexual assault cases

– Section 293, Criminal Procedure Act

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Credit Evidence

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What is evidence relevant to credibility?

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.”

Credibility evidence is defined in section 101A.

Credibility rule means section 102.

(from the dictionary to the EA)

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Some matters that could bear on the credibility of a witness

• Truthfulness, honesty

• Intelligence

• Character

• Bias or motive to be untruthful

• Capacity for accurate observation

• Opportunity to observe

• Reasons for recollection or belief

• Powers of perception and memory

• Any factors affecting competency

• Inconsistencies in evidence eg PIS

• Contradictions in testimony

SUCH EVIDENCE IS RELEVANT B/C IT AFFECTS THE PROBABILITY THAT A WITNESS IS TELLING THE TRUTH ABOUT A FACT IN ISSUE

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NOTE: Use of prior statements to either attack or support the credibility of a witness

• "prior consistent statement" of a witness means a previous representation that is consistent with evidence given by the witness.

• "prior inconsistent statement" of a witness means a previous representation that is inconsistent with evidence given by the witness.

From Dictionary to EA

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Who assesses the credibility of witnesses?

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Distinction in applying the credibility rule

• Distinction between evidence relevant to credit and evidence relevant to a fact in issue.

• Is the distinction between evidence relevant to credibility and evidence relevant to a fact in issue a distinction which can be easily made?

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Palmer v R per McHugh J at [51]

The line between evidence relevant to credit and evidence relevant to a fact-in-issue is often indistinct and unhelpful. …. Indeed, in some cases, the credibility of a witness may be of such crucial importance that it is decisive of the facts-in-issue, particularly where, as in the present case, the witness is a participant in the very facts-in-issue or the only eyewitness to them.

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[52]

The rationale behind the credit and facts-in-issue distinction does not depend on logic. It "is based primarily upon the need to confine the trial process and secondarily upon notions of fairness to the witness". It is rooted in the need for "case management" rules.

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[53] That being so, the evidentiary rules based on the distinction between issues of credit and facts-in-issue should not be regarded as hard and fast rules of law but should instead be seen "as a well-established guide to the exercise of judicial regulation of the litigation process".

[56] – flexible approach

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Motive to lie

• Can the prosecution cross examine the accused about why the complainant would lie?

- Palmer

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Course outline

(a) The credibility rule

(b) Attacking a witness’ credit

(c) Supporting witness’ credit

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102 The credibility rule

Credibility evidence about a witness is not admissible.

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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.

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Interpretation of 102 - Adam

• Former s 102 –

Evidence that is relevant only to a witness’s credibility is not admissible

• Adam HC – literal interpretation of 102

• S101A was inserted into the Act to overrule Adam.

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Adam v The Queen HC

• Constable Carty was attacked in a car park of a hotel by a group of young men. He suffered a fatal stab wound. Several members of the group of young men were seen to kick and stomp on Constable Carty.

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Sako’s evidence

• Sako had made an ERISP statement to police ten weeks after the murder. His statement implicated Adam in the murder.

• The prosecution called Sako to give evidence.

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At the trial, Sako gave evidence…

Sako then gave the following evidence:

"Q Did you get up?

A Yes.

Q What did you do then?

A That when I get up, I saw blood coming from my neck.

Q Did you see anybody else near you and that man?

A No I didn't. I didn't feel when I fell off and I saw blood I didn't see nothing.

Q Before you fell did you see anybody else?

A No."

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Adam - trial

• What did the prosecution do?

• Was the ERISP admitted at trial? If yes, how was it admitted?

• What directions did the TJ give?

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TJ direction on use of ERISP

• The trial judge directed the jury that the prosecution's case depended on the jury disbelieving what Sako said in Court and believing part of what he said to police in his ERSIP.

• Permitted to use ERISP for hearsay and credit use.

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The appeal

• The appeal to the High Court was on the basis that Sako’s statement to police was inadmissible, either under s 60 or 66, in addition the appellant contended that if the statement was only relevant (and only admissible) to credit then s 102 applied to exclude the evidence.

• Question on appeal – whether TJ erred in admitting ERISP as evidence of the truth of what was stated in ERISP.

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Relevance of the PIS at [13]

Plainly, the evidence of the prior inconsistent statements related to whether Thaier Sako was to be believed on oath. But the evidence related to more than that question. It was not evidence which related only to his credibility. If what was said in the prior inconsistent statements was accepted, that could rationally affect (in at least some respects directly, and in others indirectly) the assessment of the probability of the existence of several of the facts in issue in the proceeding. In his statements to the police, Thaier Sako had described the events that led up to the stabbing of Constable Carty. He told police who was standing where, and what they were doing. That evidence, if accepted, affected the assessment of the probability of the existence of some of the central facts in issue in the trial. The evidence of the prior inconsistent statements was, therefore, relevant.

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The result [39]

• Sako’s prior statement was relevant to credibility and other issues in the case, thus s 102 did not apply, and

s 60 allowed the statement to be used as truth of the contents of the statement. Section 66 did not have to be considered.

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Put another way,

• The majority held that the former s 102 did not apply where evidence was relevant to credibility and relevant in some other way (ega hearsay use) even though it was inadmissible for that other use, subject to the discretions. Section 60 then permitted the evidence to be used for a hearsay use, subject to s 136.

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The interpretation of 102 after Adam-

• When evidence is relevant in another way (ieother than credit), s 102 has no application.

• This construction of s 102 enabled the potential avoidance of 2 major exclusionary rules (59 and 102).

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Exceptions to the Credibility Rule

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• At common law, finality rule – answers given by a witness in cross examination regarding collateral facts such as credit must be regarded as final (there were exceptions to this rule).

• Also, at common law, bolster rule – evidence can not be admitted to support credibility of witness (there were exceptions).

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The exceptions to 102

• If s 102 applies then the evidence is excluded.

• What are the situations where an application of s 102 may arise?

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Attacking credit of other side’s witness – s 103

S 103 Exception: cross-examination 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.

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• Note ss 43 and 44

• Note 192

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Cross examination of the accused

• Leave required under 104

• Applies in addition to 102 and 103

• Leave not required to xx re

(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.

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S 106 Exception: rebutting denials by other evidence

(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) 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.

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• What is the relationship between s 103 and 106?

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Attacking credit of own witness

• Which sections apply? – list them.

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Supporting the credit of own witness

• 108(1)

• 108(3)(a)

• 108(3)(b)

See Graham v The Queen

Note s 39

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Supporting credit of own witness

108 Exception: re-establishing credibility (1) 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: (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 ofthe prior consistent statement.

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Graham v The Queen at [8]

In exercising the discretion under s 108(3) to permit the adducing of evidence of a prior consistent statement, it is important to bear two matters in mind. First, s 108 creates an exception to the "credibility rule" - the rule that evidence that is relevant only to a witness's credibility is not admissible. Second, it is important to identify how the evidence relates to the statutory premise for its admission. Whether, if admissible, the complaint becomes evidence of the truth of what is asserted is not relevant to the exercise of the discretion to give leave under s 108. The exercise of the discretion under s 108 depends upon the effect of the evidence on the witness's credibility: here, the suggestion of fabrication.

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[9]

How does the making of a complaint six years after the events bear upon that question? Unless the making of the complaint can be said to assist the resolution of that question, the evidence of complaint is not important and would do nothing except add to the length of the hearing. And in this case, it is by no means clear that the making of a complaint six years after the event does assist in deciding whether the complainant had fabricated her evidence. Although trial counsel for the appellant suggested to the complainant, by his last question in cross-examination, that she was "making it all up" the allegation of fabrication of evidence did not loom large in the trial. No question was put, and no answer was given, from which the time of alleged fabrication could be identified. The complaint having been made in 1994, and it having led at once to the start of police investigations, it may be doubted that a jury could gain assistance from its making in deciding whether the complainant had fabricated her story.

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Papakosmas v The Queen

The Appellant argued that even if complaint evidence was admitted under s 66, the trial judge should have limited its use to CL credit purpose, i.e. the jury should have been directed that the complaint evidence could only be used to support the credit of the complainant to prove consistency of conduct.

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Gleeson CJ and Hayne J at [39]

The submissions must be rejected. They amount to an unacceptable attempt to constrain the legislative policy underlying the statute by reference to common law rules, and distinctions, which the legislature has discarded.

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At [40]

There may well arise circumstances in which a court, in the exercise of a discretion enlivened by the requirements of justice in the facts and circumstances of the particular case, will see fit to limit the use of complaint evidence, and, in some instances, it may be appropriate to effect that limitation in a manner which corresponds to the previous common law. To assert a general principle of the kind for which the appellant contends, however, would be to subvert the policy of the legislation.

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McHugh J at [94]

It is artificial and wrong to admit evidence pursuant to s 66(2) and then limit the use of the evidence to credibility issues by exercising the power conferred by s 136.

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Example

Tran is suing Brown for personal injuries arising from a collision between their cars which occurred on a highway.Immediately after the collision, Tran told his passenger: “That car went through a red light”.At the hearing, Tran testifies that Brown’s car went through a red light. Counsel for Brown then cross-examines Tran and asks the following questions:

“You have concocted this story today, haven’t you, because you are actually the driver who went through the red light?”Tran answers “No”.

(a) What should Tran’s counsel do? Should Tran’s counsel call the passenger?

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Green arrived at the scene straight after the collision and gave first aid to both drivers. Green helped pull Brown out of his car, and told the police officer who attended at the scene the following:

“As I dragged Brown from his car, he said to me, ‘I am really sorry, I must have dozed off, and when I woke up I was on the wrong side of the road and I hit the other car.’”

Tran’s solicitor issued a subpoena on Green to giveevidence at the hearing. Green is called as a witness and testifies

“I cannot remember any conversation between myself and Brown”.

(b) What should Tran’s counsel do? What application may be necessary?

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Brown then gives evidence in his case. Brown states

that “I stopped at the red light and then drove when

it was green”.

Tran’s counsel has a police notebook entry

that records an interview with Brown. In this

interview, Brown states “I can’t remember the traffic

light”.

(c) From the above evidence, how should Tran’s counsel cross-examine Brown?

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Feedback on assignment

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