The Credibility Rule:

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• The Credibility Rule
• When, Why and How

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Definitions
Credibility of a witness means the credibility of
any part or all of the evidence of the witness,
and includes the witnesss 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.
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• Evidence can be relevant for MORE than one
  purpose

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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.

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The effect of s 101A
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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

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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.

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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 witnesss
  credibility.
• Ref in (4) does not include evidence of conduct
  in relation to
• (a) events relating to the defendants
  prosecution or
• (b) the investigation of the matter being
  prosecuted.

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S 106 Exception rebutting denials with other
evidence

• (1) The credibility rule does not apply to
  evidence relevant to a witnesss 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 192

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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 Ws 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

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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 192

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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)

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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