Evidence Act 1995, Pt 3.7 (ss 101A–108C)
Part 3.7 has now been divided into Divisions, as follows:
Div 1 — Credibility evidence (s 101A)
Div 2 — Credibility of witnesses (ss 102–108)
Div 3 — Credibility of persons who are not witnesses (ss 108A–108B)
Div 4 — Persons with specialised knowledge (s 108C).
Part 3.7 has been substantially amended by the Evidence Amendment Act, largely as a result of the decision of the High Court in Adam v The Queen (2001) 207 CLR 96 which interpreted the credibility rule defined in the former s 102 (“Evidence that is relevant only to a witness’s credibility is not admissible”) very narrowly in accordance with its terms, thus precluding evidence as to the credibility of a witness where it was relevant to proof of a fact in issue or for some other purpose in accordance with the common law collateral evidence rule: R v Rivkin (2004) 59 NSWLR 284 at –; Peacock v R (2008) 190 A Crim R 454 at . At common law, evidence as to the credit of a witness (rather than as to his or her credibility) was admissible where its nature was such as to tend rationally and logically to weaken confidence in the veracity of the witness or in his trustworthiness as a witness of truth: Bickel v John Fairfax & Sons Ltd  2 NSWLR 474 at 494, followed by Wentworth v Rogers (No 10) (1987) 8 NSWLR 398 at 408.
Odgers, Uniform Evidence Law (13th edn at [EA.101A.60]) explains that the effect of the amendments made to this Part is that the requirements of Pt 3.7 do not apply where the evidence is relevant not only to the credibility of a witness or person but is also relevant and admissible for another purpose. Once admitted for that other purpose, the evidence becomes relevant also to the witness’s credibility despite its non-compliance with Pt 3.7 — subject to the discretions to exclude or limit the use of the evidence in Pt 3.11 (Discretionary and mandatory exclusions).
Credibility evidence — Div 1 (s 101A)
[4-1190] Credibility evidence — s 101A
Section 101A — a new definition inserted following the report Uniform Evidence Law (ALRC Report 102) — defines “credibility evidence” as including evidence relevant to the credibility of a witness or person that either:
is relevant only because that evidence affects the assessment of that credibility; or
is relevant because that evidence affects that assessment of credibility and is also relevant for some other purpose for which it is not admissible, or cannot be used, because of a provision in Pts 3.2–3.6 (Hearsay, Opinion, Admissions, Evidence of judgments and convictions or Tendency and coincidence).
Background The Credibility Rule prior to the Evidence Amendment Act provided, in s 102, that “Evidence that is relevant only to a witness’s credibility is not admissible”. There was no definition of “credibility evidence”.
In Adam v The Queen (2001) 207 CLR 96, the High Court held that the Credibility Rule did not apply if the evidence was relevant to both credibility and a fact in issue, even where the evidence was not admissible for the purpose of proving that fact in issue. The ALRC considered that this decision removed the control which had been intended by the Credibility Rule: ALRC Report 102, at 12.5. Section 101A was intended by the ALRC to overcome that decision of the High Court.
The stated intention of the ALRC was to make evidence relevant to both credibility and a fact in issue (but not admissible for the latter purpose) subject to the same rules as other credibility evidence: ALRC Report 102, at 12.14. Recommendation 12–1 described its intention as being to ensure that the provisions of Pt 3.7 apply to both: (i) evidence relevant only to credibility and, (ii) evidence relevant to credibility and also for some other purpose, but not admissible or capable of being used for that purpose because of the provisions of Pts 3.2–3.6 inclusive.
There would therefore now appear to be three categories to be considered:
Category A: the evidence is relevant only because it affects the assessment of the credibility of a witness or person
Category B: the evidence is relevant only to the assessment of a fact in issue
Category C: the evidence is relevant to the assessment of both issues, but is not admissible as proof of the fact in issue.
Application of Pt 3.7 Odgers, Uniform Evidence Law (13th edn at [EA.101A.60]), accepts that the requirements of Pt 3.7 in respect of credibility evidence applies to Category A, but asserts that they do not apply where the evidence is relevant not only because it affects the credibility of a witness or person but where it is also relevant and admissible for another purpose; in such a situation, he says, the evidence may (subject to discretionary considerations) also be used to affect the credibility of that witness or person even if it would not satisfy the requirements of Pt 3.7 if those requirements applied to it. That would appear to include Category C.
Anderson et al, The New Law of Evidence, says (at [101A.2]) that Pt 3.7 operates only in relation to evidence that is relevant to credibility and meets, or arguably meets, one of the alternative descriptions in s 101A — that is, to Categories A and C.
The textbooks would accordingly appear to be in agreement. Section 101A has been the subject of limited judicial comment, but see Tieu v R (2016) 92 NSWLR 94 at –; Davis v R  NSWCCA 257 at –.
The High Court has emphasised that the line between matters of credit and matters relevant to a fact in issue is often indistinct: Goldsmith v Sandilands (2002) 190 ALR 370 at , –, –, –, –; Nicholls v The Queen (2005) 219 CLR 196 at , –, –, –, –, –. (Both cases are from Western Australia, a non-Evidence Act jurisdiction, but the statements made appear to be of general application.)
Credibility of witnesses — Div 2 (ss 102–108)
[4-1200] The credibility rule — s 102
The credibility rule now provides simply that “Credibility evidence about a witness is not admissible”. It is no longer restricted to evidence “relevant only to a witness’s credibility”, and now includes evidence relevant to the assessment of a fact in issue where it is not admissible as proof of that fact in issue.
The Note to s 102 identifies the specific exceptions to the credibility rule, by reference to the following sections:
ss 103 and 104 — evidence adduced in cross-examination
s 106 — evidence in rebuttal of denials
s 108 — evidence to re-establish credibility
s 108C — evidence of persons with specialised knowledge
s 110 — character of accused persons.
The Note also warns that other provisions of the Evidence Act, or other laws, may operate as further exceptions. Section 108C was inserted by the Evidence Amendment Act. Section 110 is to be found in Pt 3.8 (Character).
Sections 108A and 108B deal with the admission of credibility evidence about a person who has made a previous representation but who is not a witness.
Anderson et al, The New Law of Evidence, 2nd edn, have (at 406) collected with citations of authority a list of evidence relevant to the credibility of a witness or person as including:
certain prior convictions and certain prior dishonest conduct by the witness
the veracity of the witness, including bias, motive to lie, making false representations knowingly or recklessly whilst under a legal or moral obligation to tell the truth
coaching of the witness
the intellectual capacity, capacity to remember or know matters and inability to be aware of or recall matters due to age, illness or injury, or physical attributes
prior inconsistent statements, and
physical inability to observe or hear (lighting, obstructions, noise etc).
It should be noted that evidence of recent complaint in sexual assault cases is now admitted primarily not as being relevant to the complainant’s credit, but as first-hand hearsay pursuant to s 66(2) of the Evidence Act, and thus also as evidence relevant to the complainant’s credit because it is not then relevant only to that issue and therefore caught by the terms of s 102: R v DBG (2002) 133 A Crim R 227 at .
[4-1210] Exception: cross-examination as to credibility — s 103
The distinction required by the Evidence Act between evidence that is relevant only to credit and evidence that goes to the existence of a fact in issue can be difficult and it is an artificial one: Palmer v The Queen (1998) 193 CLR 1 at –; SRA v Brown (2006) 66 NSWLR 540 at  (Giles JA),  (Santow JA).
Section 103 (as amended by the Evidence Amendment Act) provides that the credibility rule in s 102 does not apply if the evidence established in cross-examination “could substantially affect the assessment of the credibility of the witness”. This amendment was intended by the ALRC to define the expression “has substantial probative value” in s 103 as originally enacted in terms used by the courts — in particular, R v RPS (unrep, 13/8/1997, NSWCCA) at 29 — in construing that phrase: ALRC 102, pars 12.20–12.25. See Substantially affect the credibility of the witness, below.
Probative value The phrase “probative value” is defined in the Dictionary to the Evidence Act as meaning “the extent to which the evidence could rationally affect the assessment of probability of the existence of a fact in issue”. The focus in the definition on capability draws attention to what is open for the jury to conclude; it does not direct attention to what the jury is likely to conclude, and the test of rationality also directs attention to capability rather than weight; issues of credibility or reliability would require consideration only where they are such that it would not be open to the jury to accept the evidence as affecting the factual issue in question: R v Shamouil (2006) 66 NSWLR 228 at –, following R v AB  NSWCCA 496 at ; Adam v The Queen, above, at . The legislative overruling of another part of the decision in Adam v The Queen does not appear to affect this proposition stated in the comprehensive investigation of the issue in the judgment of Spigelman CJ in Shamouil.
The probative value of the evidence must be assessed by taking the evidence at its highest: R v Sood  NSWCCA 214 at  (special leave to appeal refused  HCATrans 703); Lodhi v R (2007) 179 A Crim R 470 at – (special leave to appeal refused  HCATrans 225); R v Mundine (2008) 182 A Crim R 302 at . It should be noted that special leave to appeal was refused in Sood on the basis that leave to appeal against rulings of the trial judge in a continuing trial will only be granted in exceptional circumstances: Re Rozenes; Ex p Burd (1994) 68 ALJR 372 at 373. The application for special leave to appeal in Lodhi was unrelated to the Evidence Act point.
The test imposed by s 103 is a somewhat higher one than that of relevance: Jovanovski v R (2008) 181 A Crim R 372 at . It has been described as tightening the general law in relation to cross-examination on credit: Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 180 ALR 569 at . Section 103(2) gives some guidance as to what matters regard may be had: whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when under an obligation to tell the truth, and the period that has elapsed since the acts or events to which the evidence relates were done or occurred.
Substantially affect the credibility of the witness This phrase was adopted by the Evidence Amendment Act in order to reflect the definition given by the courts to the expression “substantial probative value” previously adopted in s 103. There appears to have been no change in meaning. For evidence to have a substantial effect upon the creditability of a witness within the meaning of s 103(1), therefore, it must have had the potential to have a “real” or a “significant” bearing on the assessment of the accused’s credibility, particularly that credibility in relation to the evidence he had given or would give at the trial: R v El-Azzi  NSWCCA 455 at  (the refusal of special leave to appeal,  HCATrans 781, was unrelated to this point). The pre-Evidence Act decision in R v Saleam (1989) 16 NSWLR 14 at 18 — that, once a legitimate forensic purpose for the production of documents has been established, it is not for the trial judge to be satisfied that they will assist an accused in his defence — is not applicable to a decision under s 103: Jovanovski v R, above, at .
In ALRC 102 at 12.29, it was suggested that, if objection is taken to a line of cross-examination before its substantial effect upon the credibility of a witness has become apparent, it could be appropriate to conduct an examination pursuant to s 189 in the absence of the jury and the witness (the voir dire) to enable the value to be disclosed without prejudicing the forensic technique of the cross-examiner.
It is not sufficient that the cross-examination of a witness demonstrates only that the witness is a discreditable person; it must be directed as to whether the witness is to be believed on his oath: R v Slack (2003) 139 A Crim R 314 at –, following Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213 at 220–221; Bickel v John Fairfax & Sons Ltd  2 NSWLR 474 at 494; Wentworth v Rogers (No 10) (1987) 8 NSWLR 398 at 408. Indeed, cross-examination directed only to the character of the witness may not be asked unless the court gives leave: Evidence Act, Pt 3.8, s 112. Section 192 (Leave, permission or direction may be given on terms) elaborates some of the matters to be taken into account in deciding whether leave should be given: the extent to which the evidence would be likely to add unduly (or to shorten) the length of the hearing, or would be unfair to a party or a witness; the importance of the evidence; the nature of the proceeding; and the power of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.
The interpretation of s 103 is discussed in R v El-Azzi, above, at –, –, somewhat inconclusively except to suggest that the High Court in Stanoevski v The Queen (2001) 202 CLR 115 had declined to “harmonize” Pt 3.7 (Credibility) and Pt 3.8 (Character): see Stanoevski at . Character is, however, relevant to credibility: R v Murphy (1985) 4 NSWLR 42 at 54; Melbourne v The Queen (1999) 198 CLR 1 at , –, , , , and reference should be made to Pt 3.8 (Character). The differences between the two concepts was raised by the High Court, but not resolved, in Stanoevski v The Queen at .
Examples In R v Vawdrey (1998) 100 A Crim R 488, the complainant in a prosecution for aggravated indecent assault (who was the defendant’s step-daughter) gave evidence that such an assault had taken place in the presence of a friend of the defendant, who had remonstrated with the defendant, and that the defendant had then claimed that he was allowed to act that way because she was his daughter. The claim alleged to have been made by the defendant also implied that he had committed such an assault before. Evidence of the defendant’s friend, denying that this had taken place in his presence as the complainant had alleged, was held (at 495) to have been wrongly rejected by the trial judge as being relevant only to the credit of the complainant, on the basis that it “probably” had substantial probative value and that, in any event, it was relevant not only to the credit of the complainant but also to “relationship”: see Use of evidence for other purposes — s 95 at [4-1120], discussing s 95.
Evidence that a claimant for workers’ compensation had been convicted for attempting to raise money from her bank on the basis of a forged document relating to the facts of her claim to be a worker was held to have had substantial probative value, thus admissible pursuant to s 103, and to have been wrongly rejected: Commercial Union Workers’ Compensation (NSW) Ltd v Clayton  NSWCA 283 at . Conviction of a criminal offence involving serious dishonesty has substantial probative value in relation to a witness’s credit: R v El-Azzi at .
Cross-examination of the plaintiff in a civil case to establish that he was a “shonk” was held to be admissible in Bass v TCN Channel Nine Pty Ltd  NSWCA 343 at –.
In Kamm v R  NSWCCA 290, the Court of Criminal Appeal dismissed an appeal based in part on a complaint that cross-examination of a defence witness did not have substantial probative value. The court cited with apparent approval, at , a decision of the Victorian Court of Appeal rejecting an appeal based on a complaint that a defence witness had been cross-examined to suggest that he took an affirmation rather than an oath because he was telling lies, as the statutory availability of an affirmation did not preclude such a suggestion being made: R v VN (2006) 15 VR 113 at –.
Fishing expeditions An issue posed by s 103 often raised in relation to subpoenas directed to the keepers of criminal or financial records is whether they are mere fishing expeditions to provide ammunition for cross-examination of witnesses as to their credit. In Fried v National Australia Bank Ltd (2000) 175 ALR 194, Weinberg J (at ) accepted that it may be legitimate to issue a subpoena directed to a third party in order to obtain documents for the purpose of impeaching the credit of a witness (citing R v Saleam (1989) 16 NSWLR 14 at 19), but he cast doubt as to whether such a subpoena should be issued solely for that purpose (at –) and held (at ) that it was inappropriate to permit a subpoena which “does little more than trawl for documents” which may be used for that purpose. This narrow approach to the issue has not been followed in New South Wales. In R v Saleam, emphasis was placed (at 18) on the need for the identification of a legitimate forensic purpose for which the subpoena was issued — that it is “on the cards” that the documents sought would materially assist the party issuing the subpoena, see Sankey v Whitlam (1978) 142 CLR 1 at 414. In Liristis v Gadelrabb  NSWSC 441, Brereton J accepted that “trawling” in this context was the same as “fishing”, but made it clear (at ) that it is not “fishing” to seek such documents when there are reasonable grounds to think that fish of the relevant type are in the pond (Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254) or that it is “on the cards” that the relevant documents (even though they are relevant only to credit) will be elicited by the challenged subpoena.
Prejudice arising from the nature of the evidence Prejudice to a party from the nature of the evidence tendered itself, which is not caused by the failure to give reasonable notice, is not relevant to the issues arising out of s 103: R v Harker  NSWCCA 427 at ; Blomfield v Nationwide News Pty Ltd  NSWSC 977 (Harrison J) at .
[4-1220] Further protections: cross-examination of accused — s 104
The heading to s 104 in the NSW Evidence Act is “Further protections: cross-examination as to credibility”, but the section itself is in identical terms to the Commonwealth statute.
This section provides additional safeguards to those provided by s 103 where the accused gives evidence. The amendments made by the Evidence Amendment Act to this section follow on, and are additional to, the amendments made to s 103.
Leave required Section 104 applies only to “credibility evidence” as defined in s 101A. The accused may not be cross-examined about a matter that is relevant to his credit unless the court gives leave. Prior to the Evidence Amendment Act, leave was required where the matter was relevant only to the issue of the credit of the accused; the admissibility of such evidence that went to an issue as well as to the credit did not require leave: see, for example, R v Spiteri (2004) 61 NSWLR 369 at  (which is reproduced only in  NSWCCA 321, and is discussed below).
However, leave is not required for cross-examination about whether the accused is biased or has a motive to be untruthful, or is, or was, unable to be aware of or recall matters to which his evidence relates or has made an inconsistent statement: s 104(2)–(3).
The phrase “relevant only” in s 104(1) is not to be interpreted as meaning “admissible only” in relation to the issue of credit: Adam v The Queen (2001) 207 CLR 96 at –. This part of the decision in Adam does not appear to have been affected by the legislative overruling of another part of that decision. Odgers, Uniform Evidence Law (13th edn at [EA.104.60]) has emphasised that evidence affecting the credibility of a witness or person will not be “credibility evidence” as defined by s 101A if it is also relevant and admissible for another purpose.
Otherwise, leave for such cross-examination by the Crown will be given only where evidence has been adduced by the accused (other than concerning the events for which he is being prosecuted or the investigation of those events) that tends to prove that a Crown witness has a tendency to be untruthful and is relevant solely or mainly to the credibility of the Crown witness: s 104(4).
Examples In R v Houssein  NSWCCA 74, it was held (at ) that — in a prosecution of the appellant for maliciously inflicting grievous bodily harm upon his brother with such intent — cross-examination of the defendant by the Crown to establish that an Apprehended Violence Order had been granted to his mother against him on another occasion, “said nothing about [the] credibility” of the defendant.
In R v Spiteri, above, the complainant in an aggravated sexual assault case gave evidence that she had been pushed to the ground by the appellant who sat on her stomach holding her hands above her head on the ground with his left hand whilst he used his right hand to insert a bottle in her vagina; he subsequently released her hands and had penile intercourse with her while she remained on the ground. The appellant’s DNA was identified in semen taken from her vagina, and his fingerprints were identified on a bottle found in the area. He asserted that the complainant had herself inserted the bottle in her vagina and had then invited him to have intercourse. However, he challenged the evidence that he had held the complainant’s hands on the ground above her head with his left hand, and asserted that some three months earlier he had seriously injured his left hand and was still at the time of the trial significantly disabled in his left arm, making it physically impossible for him to restrain the complainant in the way she described. His evidence was that he could still not at the time of the trial put pressure on his left wrist, and he made it plain to the jury that, even at the time of the trial (ten months after the intercourse), he was still so incapacitated. He was cross-examined by the Crown to suggest that he had a few days before the trial been doing press-ups in the cells, and he said that he had tried but had been unsuccessful in doing so. He said it was a complete lie to suggest that he had done forty push-ups in the cells. The Crown was granted leave to call evidence from a Corrective Services officer that he had seen the appellant using both hands and wrists. The videotape from a surveillance camera in the appellant’s cell five days earlier was tendered showing him performing exercises as described by the officer.
A number of points were argued on appeal, one asserting that the Crown had failed to seek leave prior to this particular cross-examination. The Court of Criminal Appeal held (at  et seq) that the Crown had no obligation to disclose material relating only to the credibility of defence witnesses (including the accused) or material that would deter an accused person from giving false evidence or raising an issue of fact which might be shown to be false. It was also held (at ) that leave to cross-examine the appellant concerning his claim of disability and to produce evidence as to his push-ups in the cells was not required, as the appellant had himself made his current incapacity relevant to his alleged disability at the time of the alleged sexual assault, and therefore the evidence was not relevant only to his credit.
Leave to cross-examine the defendant as to his credibility is not required where he has himself given evidence he was a person of good character: R v Johnston  NSWCCA 58 at –.
Raising character Leave must not be given unless the accused has either raised his own good character or adduced evidence — other than evidence in relation to the events in relation to which he is being prosecuted or the investigation of the offence for which he is being prosecuted — that tends to prove that a prosecution witness has a tendency to be untruthful: s 104(4)–(5).
In Gabriel v R (1997) 76 FCR 279 at 294–298 (FCAFC), it was held that the common law cases in relation to “raising character”, which required a deliberate decision by the accused to introduce his character as an issue, applies to s 104. Higgins J in that case placed some reliance on what he saw to be a significant difference between the Commonwealth and NSW statutes in relation to s 110(3) (Evidence about character of accused persons), but it has been suggested that the difference to which he refers is inconsequential: see R v Bartle  NSWCCA 329, where Gabriel is discussed at –. However, in Bartle, it was held, consistently with Gabriel, that s 104(4)(a) should be interpreted as permitting leave to adduce evidence relevant to the credibility of the accused only where he has deliberately raised his character as an issue in the sense of asserting that, by reason of his good character, he is unlikely to have committed the crime charged, as was the common law: R v Fuller (1994) 34 NSWLR 233 at 237–238.
In Gabriel, there was a difference of opinion as to whether the accused had raised character; Gallop and Mathews JJ (at 281, 300) held that a protestation by the accused in answer to a provocative question by the prosecutor (“Do you need a reason to attack people?”) — that he was not “the sort of person who would go around stabbing people” — was no more than an emphatic denial that he had done what was alleged against him.
Similarly, in R v Bartle (at , ), it was held that, where the prosecution cross-examines the accused to suggest that he had the opportunity and tendency to commit the type of crimes charged, it can hardly be surprised if the accused chooses to deny emphatically that the opportunity was taken or the opportunity was realised as regards the offence charged. It will generally be harder for it to persuade the judge that the accused’s answer “adduced” good character where the accused had been placed in a position where he is concerned to address the perceived hint of guilt by making that emphatic denial.
In R v Skaf  NSWCCA 74 at –, following Bartle, it was held that there needed to be a subjective intent to raise good character before it could be held that the accused had adduced evidence to prove his good character, whether or not he had blurted out his answer without much thought. See also R v El-Kheir  NSWCCA 461 at ; PGM v R (2006) 164 A Crim R 426 at .
In some cases, the accused may be obliged to answer a question from the prosecutor in a way that does inferentially raise his character. An example is to be found in PGM v R, above, where the accused was standing trial on charges of child indecent assault. The complainant had said that the accused had shown her an image on a computer which was described as a pornographic one. The accused had in his possession a compact disc which had such an image on it. The Crown had unsuccessfully sought to rely on the whole disc as tendency evidence, and the disc was not at that stage in evidence. In his evidence, the accused accepted that he had one such image on his computer, and that he had seen it when he had first received the compact disc. He said that he had been unsuccessful in deleting it. He denied having looked at that image again. In answer to the question “Why not?”, he said “I don’t like that sort of image on my computer”, and he repeated that answer when asked to explain what he had meant. The Crown was granted leave to ask the accused whether his computer contained a large number of prepubescent girls engaged in sexual activities with adult males. The accused said that it did in fact, but that he had only seen five or six and that they did not involve adult males. He was then asked whether he was shocked to think that he had in his possession a CD with a large number of child pornographic images, and he replied “I’d be dismayed sir if that’s in fact true”. The Court of Criminal Appeal held that, although the accused could perhaps have answered the questions in a way which did not raise his character, it was not immediately apparent what those answers might have been. It was held (at ) that the trial judge had not been entitled to conclude that the accused had raised character.
Section 192 elaborates some of the matters to be taken into account in deciding whether leave should be given: see [4-1210] Exception: cross-examination as to credibility — s 103. In Stanoevski v The Queen (2002) 202 CLR 115 at , the High Court made it clear that the judge is also to take into account, beyond the matters listed in s 192, any matters that may be relevant in the particular case.
Not every attack on the credibility of a Crown witness warrants the exercise of the s 104(2) discretion to grant leave to cross-examine the accused: R v El-Azzi  NSWCCA 455 at  (Simpson J), with whom Santow JA agreed at . The accused’s legal representative must be given substantial flexibility in the approach taken to cross-examining Crown witnesses without fear that attacks on those witnesses, if made within proper limits, will expose their clients to the potential disclosure of their criminal histories, or will alternatively operate as a disincentive to exercising the option to give evidence: at . At , again with the agreement of Santow JA, Simpson J said that the issue of leave to cross-examine the accused was based essentially on the issue of fairness, having regard to ss 135, 137 and 192, and determined by balancing unfair prejudice against probative value, taking into account the conduct of the cross-examination of the Crown witnesses in accordance with Pt 3.8 (Character).
Section 104(6) provides that leave to cross-examine a defendant will not be granted to another defendant unless the first defendant has given evidence adverse to the defendant seeking leave to cross-examination. This provision is limited to cross-examination directed to the issue of credibility, and the common law, which permits defendant A to cross-examine defendant B on any issue even if defendant B had not given evidence adverse to defendant A, continues to apply in relation to all other issues: R v Fernando  NSWCCA 66 at –, referring to Murdoch v Taylor  AC 574 at 585.
Character is dealt with more fully in Pt 3.8 (ss 109–112). Reference should be made to s 110 (Evidence about character of accused persons). The exclusionary provisions in Pt 3.11 (ss 135–139) are directly relevant.
The prosecution’s duty of disclosure does not extend to the disclosure of material relevant only to the credibility of the accused or where it is relevant only because it might deter the accused from giving false evidence or raising an issue of fact which might be shown to be false or where its disclosure would prevent the accused from creating a trap for himself by giving false evidence: R v Spiteri (2004) 61 NSWLR 369 at , .
Section 104 must be distinguished from s 106 Section 104 applies to cross-examination of the accused; s 106 applies to the introduction of evidence contradicting the evidence of a witness (including the accused): R v PLV (2001) 51 NSWLR 736 at .
[4-1230] Further protections: defendants making unsworn statements — s 105
This section, which was never applicable in New South Wales, has now been repealed.
[4-1240] Exception: rebutting denials by other evidence — s 106
The provision as it stood before the Evidence Amendment Act replaced the common law “collateral facts” rule whereby cross-examination relating to a collateral issue is “final” and cannot be contradicted by other evidence.
The ALRC was, however, concerned with the limitations the former s 106 imposed on the flexibility required to avoid miscarriages of justice, and the section has now been recast by the Evidence Amendment Act in order:
to impose the requirement of leave to adduce the evidence where it falls within the five categories enumerated in the former s 106,
to extend the requirement that its admissibility depends on the evidence being put to the witness, and
to expand the previous requirement that, when the evidence is put to the witness, the witness must have denied its substance to include a failure by the witness to admit or agree to its substance.
To some extent, the amendments reflect a dissatisfaction by the ALRC with the past strict literal interpretations given (by the High Court) of a number of other sections (ALRC 102 at [12.81]), but they do not appear to alter the substance of the previous s 106 except the three matters already referred to.
Whether or not the substance of the evidence has been by the witness may be determined by the judge by reference to his observations of the manner in which the witness gave evidence: Copmanhurst Shire Council v Watt  NSWCA 245 at .
Requirement of leave The ALRC (ALRC 102 at [12.68]–[12.69]) adopted the reasoning of McHugh J in Nicholls v The Queen (2005) 219 CLR 196 at –, which had not been supported by the majority in that case, where he suggested that the collateral evidence rule — that, subject to certain exceptions, an answer given by a witness in cross-examination relating solely to a collateral issue, such as credit, is final, and cannot be met by evidence from other sources — should be regarded as a flexible rule of convenience that can and should be relaxed when the interests of justice require it, but not where the time, convenience or expense of admitting the evidence would be unduly disproportionate to its probative force. It is suggested that s 106(2) should be interpreted in this way.
The five categories of evidence for which leave is not required
Biased or motive for being untruthful (s 106(2)(a)): This evidence was admissible at common law: R v Uhrig (unrep, 24/10/1996, NSWCCA) at 22–23; approved in Palmer v The Queen (1998) 193 CLR 1 at , , , . A motive to lie will almost inevitably have substantial probative value in relation to credit, and so will pass the test posed by s 103: R v Uhrig at 22–23; Palmer v The Queen at .
Convicted of a criminal offence (s 106(2)(b)): This is admissible under the Evidence Act only where the conviction complies with s 103, that the conviction could substantially affect the assessment of the witness’s credibility. Factors to be taken into account include whether the nature of the crime of which the witness has been convicted is “indicative of a disregard of the law designed and calculated to reduce harmful conduct within the community” or “clearly one which in almost all cases bespeaks dishonesty”: R v Lumsden  NSWCCA 83 at .
Prior inconsistent statement (s 106(2)(c)): This was admissible at common law. Once admitted, but subject to s 136 (General discretion to limit use of evidence), the prior statement becomes evidence of the truth of the facts stated in accordance with s 60.
Section 43(2) of the Evidence Act imposes a condition on the admissibility of a such a statement otherwise than from the witness, that the cross-examiner had informed the witness of enough of the circumstances of the making of that statement to enable the witness to identify the statement, and drew the witness’s attention to so much of the statement as is inconsistent with the witness’s evidence. Section 43(1) expressly provides that “complete” particulars of the statement need not have been given, nor does a document containing a record of that statement need to have been shown to the witness.
In R v Siulai  NSWCCA 152, the appellant was charged with his brother with breaking and entering the victim’s home, stealing and assaulting him. The appellant gave an alibi notice that he was at the relevant time at his home and that he would call a witness to that effect. The Crown tendered the notice in its case (see ) as a deliberate lie demonstrating a consciousness of guilt. However, although it was stated at the commencement of the trial that he would give evidence, he did not do so and he formally admitted that he was present at the victim’s home: at . The appeal in relation to the admissibility of the alibi notice as consciousness of guilt was dismissed: at . However, there was some discussion in the Court of Criminal Appeal as to its admissibility pursuant to s 106(2)(c) also because, in the appellant’s videoed interview by the police that was in evidence, the appellant had said that he had no involvement in the matter, and the alibi notice went to his credit: at . It was held (at ) that, although admissible on that basis, it should have been rejected on that basis because there was a real risk that the jury would misuse it on the issue of credibility as evidence also from which guilt may be inferred.
Unable to be aware of matters to which his or her evidence relates (s 106(2)(d)): This evidence as to the awareness of the witness was permitted at common law as demonstrating the objective unreliability of the witness’s evidence: Toohey v Metropolitan Police Commissioner  AC 595 at 607–608; R v Rivkin  NSWCCA 7 at  (reported on other issues at (2004) 59 NSWLR 284). Section 106 does not, however, permit rebuttal evidence as to the witness’s inability to recall the evidence, an issue which s 104(3)(b) expressly permits as a subject of cross-examination where it could substantially affect the assessment of the witness’s credibility. The Court of Criminal Appeal has declined to read s 106(d) in a way that would include an inability to recall as well as an inability to be aware: R v PLV (2001) 51 NSWLR 736 at –; R v Galea (2004) 148 A Crim R 220 at .
Section 106(2)(d) has been interpreted broadly as extending to many aspects of reliability or credibility, including psychiatric, psychological or neurological considerations: R v Rivkin, above, at .
Knowingly or recklessly made a false representation while under legal obligation to tell the truth (s 106(2)(e)): The distinction between this category of evidence and that provided by s 106(2)(a) is that here there must be a legal obligation to tell the truth at the time the representation is made. Odgers, Uniform Evidence Law (13th edn at [EA.106.270]) has raised the issue as to whether this category would allow evidence to be admitted to show that the witness had lied in the same proceedings (as well as other proceedings) as long as the substance of the evidence has been put to the witness in cross-examination and the witness has denied it. The ALRC has made it clear that such an interpretation was not intended, as it would render pars (a)–(e) unnecessary, and that the rules of statutory interpretation would prevent such an interpretation being accepted: ALRC 102 at [12.80–12.81]. This issue does not appear to have been resolved in any judicial decision.
A mere denial of an allegation put to a witness in cross-examination is not sufficient to satisfy the requirements of s 106(2)(e): R v Gregory  NSWCCA 199 at .
Section 107 has been repealed.
[4-1250] Exception: re-establishing credibility — s 108
The previous difference between the Commonwealth and the NSW versions of s 108 of the Evidence Act — dealing with unsworn statements by the accused — has now disappeared with the abolition of such statements in trials to which the Commonwealth Evidence Act 1995 applies.
Section 108(1), excluding the application of the credibility rule to evidence adduced in re-examination, broadly accords with the common law rule permitting re-examination directed to explaining away or qualifying facts elicited in cross-examination which were prejudicial to the witness’s credit or from which prejudicial inferences could be drawn: R v Rivkin at , referring to Wentworth v Rogers (No 10) (1987) 8 NSWLR 398 (see at 409B).
Section 108(3) does not permit the witness in re-examination to merely reiterate his evidence-in-chief: Clarkson v R (2007) 171 A Crim R 1 at .
Section 108(3)(b) — that a prior consistent statement of complaint is, with leave, admissible where it “will be suggested” that the evidence of a witness has been fabricated — is not available merely because it is known that the subject matter of the complaint will be denied: R v Whitmore (1999) 109 A Crim R 51 at . Section 192 deals with some of the matters to be taken into account when granting or refusing leave.
Where evidence of complaint is inadmissible because the complaint was not made when it was fresh in the memory of the complainant (as s 66 requires), s 108(3)(b) will nevertheless permit the evidence to be admitted where it is or will be suggested that the complaint has been fabricated: Pavitt v R (2007) 169 A Crim R 452 at . It is open to the trial judge to conclude that fabrication will be suggested where counsel for the accused, in his opening address pursuant to s 159 of the Criminal Procedure Act 1986, told the jury that they will develop “significant and grave concerns” for the reliability of the complainant by reason of his history of mental illness, dug abuse and criminal conduct: at –. A submission that leave could not be granted until it was directly or clearly or explicitly put to the complainant that he is fabricating or reconstructing was rejected: at –. It is suggested that care be exercised before taking mental illness into account in finding that it will be suggested that the complaint has been fabricated, rather than that it is merely unreliable.
Evidence of complaint, once admitted as first hand hearsay pursuant to s 66, becomes evidence of the truth of what is asserted in accordance with s 60, unless the general discretion to limit the use of the evidence given by s 136 is exercised. When evidence of complaint is not admissible pursuant to s 66 (because the complaint was not made when it was fresh in the memory of the complainant) and it is admitted pursuant to leave granted pursuant to s 108(3), its purpose is to restore the witness’s credit, and s 60 again operates so that it becomes evidence of the truth of what is asserted unless its use is limited by s 136: R v DBG (2002) 133 A Crim R 227 at .
Whether the evidence of complaint becomes evidence of the truth of what is asserted is not relevant to the exercise of the discretion to grant leave pursuant to s 108 when the evidence is not otherwise admissible: Graham v The Queen (1998) 195 CLR 606 at ; R v DBG at . The exercise of the discretion depends on the effect of the evidence on the witness’s credibility, here the suggestion of fabrication: Graham v The Queen at . It is suggested that, if leave is granted pursuant to s 108, consideration should expressly be given to the general discretion given by s 136 to limit the use to be made of such evidence of complaint: R v DBG at –.
In determining whether leave should be granted pursuant to s 108 to adduce evidence of a prior consistent statement, by the witness where it adds nothing to what was said in evidence, it has been suggested that it does not rationally answer the suggestion of fabrication, reconstruction made and therefore does nothing for the witness’s credibility: R v Ali  NSWCCA 177 at . It is respectfully suggested that it will necessarily depend on the circumstances in which the prior consistent statement was made. If the statement was made in a situation where there had been no issue raised as to the circumstances alleged against the accused, the prior consistent statement may be of some value; if the allegations against the accused were already foreshadowed, it is unlikely that the prior consistent statement would be admissible under s 108; see, for example, R v MDB  NSWCCA 354 at . The facts of this case are discussed below.
In R v Johnston  NSWCCA 58, following cross-examination clearly suggesting that his evidence had been fabricated, the accused had sought to tender two statements made by him consistent with his evidence. The statements had been made “several weeks” after he had been charged, during which time he was in custody and had the opportunity to fabricate or reconstruct a self-serving account; it was held (at –) that the trial judge had not erred in rejecting them on the basis that they had no probative value. The refusal by the High Court of special leave to appeal was unrelated to this issue: Johnston v R  HCATrans 90. See also R v DBG at .
The ability of the prior consistent statement to answer the suggestion of fabrication is relevant in determining whether leave should be granted: R v BD (1997) 94 A Crim R 131 at 141; Graham v The Queen at –; R v Abdulkader (No 1)  NSWSC 198 at –; Abdul-Kader v R (2007) 178 A Crim R 281 at –. The mere fact that a consistent out-of-court statement was made as part of the train of events leading to the trial does not rationally answer the suggestion of fabrication, reconstruction or suggestion in relation to the evidence given in court: R v Ali, above, at ; see also R v Marsh  NSWCCA 370 at . A police statement or a proof of evidence in civil proceedings would ordinarily be so devoid of value in answering an earlier inconsistent statement as not to be arguably probative at all: R v Cassar  NSWSC 352 at .
A prior consistent statement is admissible if it tends to reinstate the witness’s credibility by contradicting the inference the opposing party seeks to draw from the prior inconsistent statement: KNP v R (2006) 67 NSWLR 227 at –.
A prior inconsistent statement may be inferred from conduct: KNP v R at .
The timing when the complaint is made may be more important than the circumstances in which it was made: R v DBG at ; although this is not a universal or absolute principle: R v MDB, above, at . In the latter case, the complainant (aged 12) complained to his mother that the accused (the father of the complainant’s school friend) had sexually assaulted him when he was camping with his school friend’s family on a previous occasion, but he did not make the complaint until an invitation was received by him to go camping again. The boy first gave an excuse, but then (after discussing it with two other school friends) he disclosed the sexual assault to his mother as his real reason. It was held at –, that the circumstances in which the complaint was made, when the prospect loomed that he would be expected to participate again in a camping trip with the accused, were capable of being very powerful in enabling the jury to understand why it was he had delayed his disclosure. See also R v Abdul-Kader, above, at –.
The fact that evidence of complaint is itself disputed is relevant to the grant of leave pursuant to s 108(3), as the fact that the evidence is disputed affects its weight: Pfennig v The Queen (1995) 182 CLR 461 at 482; R v DBG at .
Section 108 recognises the “subtle distinction” between putting squarely to a witness that he has fabricated his evidence or has reconstructed it (whether deliberately or otherwise) and putting the proposition that certain events did not take place: Wilson v R  NSWCCA 217 at . Only the former enlivens the application of the section.
Credibility of persons who are not witnesses — Div 3 (ss 108A–108B)
[4-1260] Admissibility of evidence of credibility of person who has made a previous representation — s 108A; Further protections: previous representations of an accused who is not a witness — s 108B
This Division fills an important gap in procedural law arising from the extensive exceptions to the rule against hearsay where the maker of a representation admitted into evidence is not called to give evidence. The two sections are dealt with together. The authors of The New Law of Evidence, 2nd edn, 2009, point out (at 108A.2) that, as the credibility rule (s 101A) applies only to a witness who does give evidence, this section now permits evidence to be admitted where it is relevant to impeaching or bolstering or re-establishing the credit of the maker of the representation even though not a witness, but only where the evidence could substantially affect the assessment of that person’s credibility (a formula that has replaced the previous description of the evidence as having substantial probative value).
Section 108B has been added to elaborate this provision, in accordance with the suggestions in ALRC 102, to apply the amended s 108A to a previous representation by the accused that has been admitted but where he has not been called to give evidence, and to impose a requirement that leave be obtained. Section 108B(5) excludes the operation of that section in relation to the conduct of the accused in relation to the events for which he is being prosecuted.
Limitations on the use to be made of this evidence can, of course, be imposed in accordance with ss 135–137.
There appears to have been no detailed consideration given to these provisions that is of assistance in their interpretation.
Persons with specialised knowledge — Div 4 (s 108C)
[4-1270] Persons with specialised knowledge — s 108C
This section was introduced in order to permit evidence to be given by persons with specialised knowledge where such evidence could bolster the evidence of another witness or where the specialised knowledge of such a witness could assist the assessment of the credibility of another witness — in particular a child witness or a witness with cognitive impairments, and to overcome what was perceived to be a reluctance of some judicial officers to accept that this is a relevant field of expertise and a matter beyond the common knowledge of the tribunal of fact.
Odgers, Uniform Evidence Law (13th edn at [EA.108C.60]), has made the valid point that s 108C is in substance an exception to the credibility rule in s 102.
Anderson et al, The New Law of Evidence, 2nd edn, 2009 (at 108C.2) summarises the requirements of the evidence to be admissible pursuant to s 108C as follows:
The witness must have specialised knowledge which is based on their training, study or experience in accordance with s 79
The evidence is of the witness’s opinion concerning the credibility of another witness which must be wholly or substantially based on the first witness’s specialised knowledge
The witness’s opinion must be capable of substantially affecting the assessment of the credibility of the witness to whom it relates
The court’s leave is required, having regard to the considerations identified in s 192(2), and any other relevant matters, and
The evidence is not excluded pursuant to either s 135 or s 137.
If the evidence is admitted, consideration must be given to the need for limiting its use: s 136.
See also [4-0630] re: s 79 of the Evidence Act (Opinion, Exception: opinions based on specialised knowledge), in particular [4-0635] dealing with the term “specialised knowledge” in relation to child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse). See also ALRC 102 at [9.138] et seq. There is little case law on the application of s 108C, however see two Victorian cases MA v R (2013) 40 VR 564 and De Silva v DPP (2013) 236 A Crim R 214. De Silva stated at  that the purpose of such evidence is “educative” in order to impart specialised knowledge the jury may not otherwise have, to help the jury understand the evidence of and about the complainant, and so as therefore to be better able to evaluate it. Such evidence bears on the complainant’s credibility but reasons for patterns of parental behaviour will not ordinarily be relevant to the credibility of a child complainant: MA v R (2013) 40 VR 564 at .
In Hoyle v The Queen  ACTCA 42, the ACT Court of Appeal held that expert evidence that a victim of sexual violence may experience a “freeze response” was admissible under this provision to prevent a complainant’s credibility being undermined by her "counterintuitive behaviour … her admitted failure to protest the appellant’s inappropriate conduct" (at ) and expert evidence "that delay or failure to report sexual violence was common among victims of sexual violence" was capable of "substantially affecting" the credibility of a complainant "who failed to make an early complaint. … [as i]t served to neutralise the intuitive view that a delay in complaint suggested that there is nothing to complain about" (at ).
Criminal Procedure Act 1986, s 159
Evidence Act 1995, ss 43, 60, 66(2), 79, 95, Pt 3.7 (ss 101A–108C), Pt 3.8 (in particular ss 110–112), Pt 3.11 (in particular ss 135–137), s 192, Dictionary
Evidence Act 1995 (Cth), s 108(2)
ALRC Report 26, vol 1, Australian Government Publishing Service, Canberra, 1985
ALRC Report 102, Australian Government Publishing Service, Canberra, 2005
J Anderson, N Williams and L Clegg, The New Law of Evidence: annotation and commentary on the Uniform Evidence Acts, 2nd edn, LexisNexis Butterworths, Sydney, 2009
S Odgers, Uniform Evidence Law, 13th edn, Thomson Reuters, Sydney, 2018