✅Credibility

The Prosecution need to seek leave before they can cross examine the defendant about his credibility. True or false?

True - Under s112, the Prosecution must seek leave (s192) before it can cross examine the Defendant on his / her character.

Under the Evidence Act 1995 s 103(1), the credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could [blank] affect the assessment of the credibility of the witness.

Substantially

Section 101A was inserted in to the Evidence Act 1995 following the decision in Adam v The Queen (2001) 183 ALR 625. True or false?

True

What is an unfavourable witness?

A witness called by a party who becomes unco-operative.

In Adam v The Queen (2001) 183 ALR 625, the witness for the prosecution, Sako, was declared an hostile witness.

False - Sako was declared an unfavourable witness

Evidence that is relevant only for credibility purpose is credibility evidence and falls within which of the following provisions?

S 101A(a)

What is credibility evidence

Evidence of the credibility of a witness, such as their ability to observe or remember facts.

What is a prior inconsistent statement?

A statement made by the witness that is inconsistent with evidence they are giving in the current proceeding.

1. How is credibility evidence defined under Part 1 Definitions of the Evidence Act?

**It relates to collateral aspects of a witness's evidence concerning their ability to observe or remember facts and events within their evidence.**

2. Does the credibility rule apply to testing the accuracy of documents or the authenticity of physical items?

**No, credibility applies only to people and not to the accuracy of documents or authenticity of items.**

3. Why is credibility evidence characterized as a "collateral fact"?

**Because it does not constitute the matters directly in dispute between the parties, being neither a fact in issue nor directly relevant to a fact in issue.**

4. Under Section 101A(a), how is evidence characterized if it is relevant solely to a witness's credibility?

**It is characterized as credibility evidence and is inadmissible subject to applicable credibility exceptions.**

5. Under Section 101A(b), how is evidence treated if it is relevant to credibility and also to an inadmissible non-credibility purpose?

**It is characterized as credibility evidence and remains inadmissible unless it falls under a credibility exception.** Due to s 101A(b)

6. What happens to evidence under Section 101A if it is relevant to credibility and also to an admissible non-credibility purpose?

**It is not characterized as credibility evidence and is admissible subject to other exclusionary rules.**

7. Which High Court decision prompted the Australian Parliament to enact Section 101A of the Evidence Act?

**Adam v The Queen (2001).**

8. Why was the police statement of the unfavourable witness Sako held to be credibility evidence under Section 101A following the Adam decision?

**Because it was relevant to Sako's credibility and was inadmissible hearsay under section 66(3).**

9. In Piddington v Bennett & Wood Pty Ltd, what evidence led by the defense was held by a High Court majority to be credibility evidence?

**Evidence from the witness's banker showing he performed no banking transactions on the day he claimed he was walking to the bank.**

10. In Peacock v The Queen, what was the subject of the sharp division among the judges of the NSWCCA?

**Whether evidence from a gang member denying participation in a robbery was credibility evidence.**

11. What did the NSWCCA decide in Davis v R regarding cross-examination about the defendant's drug use and credit card fraud?

**It was not credibility evidence because it was directly relevant to a fact in issue by explaining how she funded her drug habit without supplying drugs.**

12. Why did the prosecution require leave under Section 104(2) to cross-examine the defendant about her fake licence in Davis v R?

**Because the fake licence was relevant solely to assessing her credibility and had no relevance to the drug possession charge.**

13. What general statutory exclusion rule makes credibility evidence inadmissible under Part 3.7?

**Section 102 of the Evidence Act.**

14. What standard must evidence adduced in cross-examination satisfy under Section 103(1) to be admissible as an exception?

**It must be evidence that could substantially affect the assessment of the credibility of the witness.**

15. How did the court in R v Shamouil interpret the word "could" in Section 103(1)?

**It was interpreted as meaning "capable of" rather than "likely to."**

16. How did the court in R v Lodhi interpret the requirement that evidence "substantially affect" credibility under Section 103(1)?

**It implies a test of whether without the evidence the credibility of the witness could be adequately determined.**

17. What two mandatory considerations must a court evaluate under Section 103(2) when applying Section 103(1)?

**Whether the evidence tends to prove a knowing or reckless false representation while under an obligation to tell the truth, and the period of time that has elapsed since the acts occurred.**

18. Under Section 104(2), what general restriction applies to cross-examining a criminal defendant about credibility?

**The prosecution cannot cross-examine the defendant about a matter relevant solely to credibility without court leave.**

19. Name three specific topics under Section 104(3) where the prosecutor does NOT require leave to cross-examine a defendant on credibility.

**Bias or motive to be untruthful, inability to recall or perceive matters, or prior inconsistent statements.**

20. Under Section 104(4), when may leave be granted to the prosecution to cross-examine a defendant on credibility?

**When the defendant has adduced admitted evidence tending to prove a prosecution witness has a tendency to be untruthful, relevant solely or mainly to credibility.**

21. Under Section 104(5), what two categories of conduct are excluded from triggering Section 104(4) leave against a defendant?

**Conduct relating to the events of the prosecuted offence, or conduct relating to the investigation of the offence.**

22. Under Section 104(6), what condition must be met before a co-defendant is granted leave to cross-examine another defendant on credibility?

**The defendant to be cross-examined must have given admitted evidence adverse to the co-defendant seeking leave.**

23. What is the traditional common law rule regarding answers given by a witness under cross-examination on collateral facts?

**The answer given by the witness is final and cannot be rebutted by adducing evidence from another witness.**

24. What primary exception does Section 106(1) establish to the common law collateral facts rule?

**Evidence rebutting a denial is admissible if the substance of the evidence was put to the witness in cross-examination, the witness denied it, and the court grants leave.**

25. According to RC v R, can a witness's silence during cross-examination be treated as a denial under Section 106(1)?

**No, silence cannot be inferred to be a denial, as the only inference is reluctance to give evidence.**

26. List five circumstances under Section 106(2) where court leave is NOT required to adduce rebutting credibility evidence.

**Proving bias or motive to lie, prior criminal convictions, prior inconsistent statements, inability to perceive or recall matters, or knowingly/recklessly making false representations under legal obligation.**

27. What general rule governs the admissibility of credibility evidence during re-examination under Section 108(1)?

**The credibility rule does not apply to evidence adduced in re-examination if it arises out of cross-examination under Section 39.**

28. Under Section 108(3), under what two conditions may a court grant leave to adduce evidence of a prior consistent statement?

**If evidence of a prior inconsistent statement has been admitted, or if it is suggested that the witness's evidence was fabricated, reconstructed, or suggested.**

29. Does Section 108(3) allow a witness in re-examination to simply repeat their evidence-in-chief?

**No, Clarkson v R established that Section 108(3) does not permit a witness to merely reiterate their evidence-in-chief.**

30. According to Pangallo v Smith, are non-oral documents admissible under Sections 103 or 108(1)?

**Pangallo v Smith held that the provisions extend only to oral evidence.**

31. Under Section 108A(1), what rule applies to credibility evidence about a person who made a previous representation but is not called as a witness?

**Credibility evidence about that non-witness is inadmissible unless it could substantially affect the assessment of their credibility.**

32. What additional statutory protection does Section 108B(1) provide when the non-witness representor is an accused in a criminal trial?

**Credibility evidence regarding the accused non-witness is inadmissible unless the court grants leave.**

33. Under Section 108B(3), when is prosecution leave NOT required to adduce credibility evidence about an accused non-witness?

**When the evidence concerns bias or motive to be untruthful, inability to recall or perceive, or prior inconsistent statements.**

34. In Azzi v The Queen, why was prosecution leave not required to use the defendant's prior "sugar lie" as credibility evidence?

**Because the lie constituted a prior inconsistent statement under the exception in Section 108B(3)(c).**

35. What requirements must be satisfied under Section 108C(1) to admit expert opinion evidence regarding witness credibility?

**The expert must have specialized knowledge from training, study, or experience, the opinion must be based on that knowledge and could substantially affect credibility assessment, and leave must be granted.**

36. What specific field of expertise is explicitly included under Section 108C(2) regarding credibility opinion evidence?

**Specialised knowledge of child development and child behavior, including the impact of child sexual abuse.**

37. In R v SN, how did expert evidence under Section 108C assist the court regarding the complainant LN?

**Experts explained her diagnosis of Dissociative Identity Disorder (DID) and her distinct memory-separated "alters" who gave evidence under different identities.**

38. Do the tendency and coincidence rules apply to evidence that is relevant solely to credibility under Section 94(1)?

**No, the tendency and coincidence rules do not apply to evidence relevant only to credibility.**

39. In Papakosmas v The Queen, why was complaint evidence admitted for both truth and credibility?

**Because Section 66 applied to allow the hearsay use of the first-hand complaint evidence, making it admissible for non-credibility purposes as well.**

40. In R v Meyboom, why was prosecution cross-examination about the accused's burglary source of funds exempt from Section 104 leave requirements?

**Because the evidence was also directly relevant to whether the accused stole the victim's mobile phone, placing it outside Section 101A credibility evidence.**

41. What is an unfavourable witness under the uniform evidence laws?

**A witness called by a party who becomes unco-operative.**

42. Under Section 112, what procedural step must the prosecution take before cross-examining a defendant on their character?

**The prosecution must seek leave under Section 192.** - 112 xx on character

43. What constitutes a prior inconsistent statement under the Evidence Act?

**A statement made by a witness that is inconsistent with evidence they are currently giving in the proceeding.**

44. How does Section 101A categorize evidence that is relevant to credibility and also to an admissible hearsay exception?

**It is not categorized as credibility evidence under Part 3.7 and is admissible for both purposes.**

45. Under Section 108B(4), what must the defendant do before the prosecution can obtain leave to introduce credibility evidence against a non-witness defendant?

**The defendant must adduce admitted evidence tending to prove a prosecution witness has a tendency to be untruthful, relevant solely or mainly to credibility.**

46. Can a joint defendant obtain leave under Section 108B(6) to introduce credibility evidence against a co-defendant who did not testify?

**Only if the co-defendant's admitted previous representation includes evidence adverse to the joint defendant seeking leave.**

47. Does Section 108(3) require prior consistent statements to have been made when events were fresh in the maker's memory?

**No, prior consistent statements under Section 108(3) are not limited to statements made when fresh in memory.**

48. In Odisho v R, what issue divided the NSWCCA regarding the victim's insistence that his statement was fabricated?

**Whether suggestions that the victim was threatened, angry at police, or protecting the accused were relevant solely to credibility.**

49. What standard of bearing on credibility did R v El-Azzi require for evidence to meet Section 103?

**It must have the potential to have a "real" or "significant" bearing on the assessment of credibility.**

50. What is the ultimate effect under Section 101A if evidence is relevant to credibility but fails all credibility exceptions?

**The evidence is excluded as inadmissible under Section 102.**