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Credibility presentation - Legal Aid NSW

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The Credibility Rule:When, Why and How
Credibility of a witnessmeans thecredibilityof any part or allofthe evidence of the witness, and includes the witness’sabilitytoobserveorrememberfacts 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 personis also defined. Essentially the same definition but applied to an out-of-court representation that has been admitted into evidence.
Evidence can be relevantfor MORE than one purpose
Evidence can berelevant to:
Fact in issue (FII)Exclruledoes not arise
FII &CredibilityExcl ruleMIGHT apply
Credibility onlyExcl ruleWILL apply
Section 101A: definition of credibility(inserted in reaction to High Court decision inAdam)
Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that:is relevantonlybecause it affects the assessmentof thecredibilityof the witness or person; or(b)is relevant:(i)because it affects the assessment of thecredibility of the witness or person; and(ii)for someother purposefor which it isnotadmissible, or cannot be used,because of aprovision of Parts 3.2 to 3.6.
The effect of s 101A
Where evidenceis relevant toFII & CRED:
If ADMISSIBLEforits FII purpose↓Can also be usedfor its credibilitypurpose(s 102 does not applyienot caught by theexclusionary rule)
If INADMISSIBLEfor its FII purpose(egdueto hearsay)↓The only allowable useis for credibilitypurposes 101A meanstheexclusionary rule (s 102)willapply↓Admissibility will requirean exception tothe credibility rule
Exceptions to the exclusionary rule
Evidence that discredits:a witness during XX:s 103an accused during XX:s 104a witness by adducing evidence to rebut a denial of a credibility impeachment:s 106by adducing evidence from an expert re credibility:s 108CEvidence that accredits:a witness/accused in re-ex & prior consistent statements:s 108by adducing evidence from an expert re credibility:s 108CCredibility of non-witnesses whose representation has been admitted into evidence:for all people:s 108Afor 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 evidencecouldsubstantiallyaffectthe 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 recklesslymade a false representationwhenthe witness wasunder an obligation to tell the truth; and(b) theperiod that has elapsedsince 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 tocred(3) Prosdo not need leave ifXX goes to whether the defendant:Isbiased or has a motivefor being untruthful, orIs, or was,unable to be awareof or recall matters to whichevidrelates, or(c) Has made aprior inconsistent statement.Leave not to be givenunder (2)unless def presentedevidence that:tends to prove that awitness called by the proshas a tendency to beuntruthful; andis relevant solely or mainly to thewitness’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 192
S 106 Exception: rebutting denials with other evidence
(1) The credibility ruledoes not applyto evidence relevant to a witness’s credibility, adduced otherwise than from the witnessif:(a) in XX of the witness:thesubstance of the evidence was put to the witness, &the witnessdenied, ordid not admit or agree to, the substance of the evidence, &(b) the courtgives leaveto adduce the evidence.(2)Leave under (1)(b) is not requiredif the evid tends to prove the W:(a) isbiased or has a motivefor being untruthful, or(b) has beenconvicted of an offence, (inclforeign country), or(c) has made aprior inconsistent statement, or(d) is, or was,unable to be awareof matters that his/her evid relates, orhas knowingly or recklesslymade a false representationwhile 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 deemsinadmissible: s 102↓Admissif the questionssubstantially affectassessment of the W’scred:s 103 testAdditionalprotections(and consequences) for accused:s104↓Adducerebuttalevidfrom another sourceif W denies etc the content of the assertion:s106
s 108 Exception: re-establishing credibility
The credibility ruledoes not applyto evidence adduced inre-examinationof a witness.(3) The credibility ruledoes not applyto evidence of aprior consistent statementof a witness if:evidence of aprior inconsistent statementof the witness has beenadmitted, orit isorwill besuggested (either expressly or by implication) thatevidencegiven by the witness has beenfabricated or re-constructed(whether deliberately or otherwise) or is the result of a suggestion;and the court gives leaveto adduce the evidence of the prior consistent statement.NB Section 192
Evidence that Accredits
Evidence relevant (or admissible) only to credibility↓The exclusionary rule deemsinadmissible: s 102↓Duringre-examination (RX)questions relating to credibility permissible:s 108(1)And/orPrior consistent statements(PCS) (RX or ex-in-chief):s 108(3)(b)↓PCSadmisstorebuta 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:DictionaryWhen the exclusionary rule will apply:ss101A 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 106Evidence 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





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Credibility presentation - Legal Aid NSW