The Credibility Rule:
When, Why and How
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.
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 apply
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:
(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 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 apply
ie 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 rule
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 108
• by adducing evidence from an expert re credibility: s 108C
Credibility of non-witnesses whose representation has been
admitted into evidence:
• for all people: s 108A
• for an accused (in addition to s 108A): s 108B
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.
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:
(a) Is biased or has a motive for being untruthful, or
(b) Is, or was, unable to be aware of or recall matters to which evid relates,
or
(c) Has made a prior inconsistent statement.
(4) Leave not to be given under (2) unless def presented evidence that:
(a) tends to prove that a witness called by the pros has a tendency to be
untruthful; and
(b) is relevant solely or mainly to the witness’s credibility.
(5) 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 192
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:
(i) the substance of the evidence was put to the witness, &
(ii) 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
(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.
NB Section 192
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: s106
s 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 of the
prior consistent statement.
NB Section 192
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)
In summary
Does the credibility evidence exclusionary rule apply?
• Definitions of credibility/credibility evidence: Dictionary
• When the exclusionary rule will apply: ss 101A and 102
Does the evidence discredit?
•
•
•
•
XX a witness: s 103
XX of an accused: s 104
Evidence to rebut the denial of a witness during XX: s 106
Evidence from an expert re credibility: s 108C
Does the evidence accredit?
• Re-ex & PCS: s 108
• Evidence from an expert re credibility: s 108C
Does the evidence relate to a rep from a person who has not been
called as a witness?
• All people except the accused: s 108A
• Additional protections for an accused: s 108B
Does the adducing of the evidence require an application for leave?
• Factors for consideration: s 192