Character and credit Miiko Kumar 9 February 2015

Character

What is character evidence? repute, inferences drawn from proved instances of conduct, disposition, reputation (Cross on Evidence)

110 Evidence about character of accused persons (1) The hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced by a defendant to prove (directly or by implication) that the defendant is, either generally or in a particular respect, a person of good character. (2)If evidence adduced to prove (directly or by implication) that a defendant is generally a person of good character has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not generally a person of good character. (3) If evidence adduced to prove (directly or by implication) that a defendant is a person of good character in a particular respect has been admitted, the hearsay rule, the opinion rule, the tendency rule and the credibility rule do not apply to evidence adduced to prove (directly or by implication) that the defendant is not a person of good character in that respect.

Rule in s 110 – applies in criminal proceedings to accused (s109) S 110(1) – good character admissible “directly or by implication” S 110(2) generally S 110(3) specific respect

Advance ruling as to application of s 110? A defendant in NSW is not entitled to apply to the court for rulings on the consequences of adducing evidence of good character? – TKWJ v The Queen (2002) HC But now see s 192A

XXM of accused S A defendant is not to be cross- examined about matters arising out of evidence of a kind referred to in this Part unless the court gives leave. TJ must consider criteria in s 192 when applying s 112 Stanoevski v The Queen

S 111 Allows a defendant in criminal proceedings to lead expert opinion that is relevant to character of another defendant in the proceedings.

Directions by TJ “The preferable position is that the trial judge must retain a discretion as to whether to direct the jury on evidence of good character after evaluating its probative significance in relation to both: (a) the accused's propensity to commit the crime charged; and (b) the accused's credibility. “ Melbourne v The Queen at [30] per McHugh J

“ None of this evidence had any direct probative bearing on the truthfulness or credibility of the accused. It was all directed to the unlikelihood that he would commit the offence charged. The trial judge gave an adequate direction in this regard. Whether or not the trial judge intended, but forgot, to give a credibility direction with respect to the character evidence, no miscarriage of justice has occurred. If her Honour had given such a direction, it would have given the accused an advantage to which in point of law he was not entitled. Not only was this not a case requiring a credibility direction, in my opinion it would have been a wrongful exercise of discretion to have given it. “ at [54]

Sexual assault cases 293 of the Criminal Procedure Act

credibility

102 The credibility rule Credibility evidence about a witness is not admissible. 13

101A Credibility evidence 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 exceptions to 102 If s 102 applies then the evidence is excluded. What are the situations where an application of s 102 may arise? – Supporting – Attacking

Exceptions to the Credibility Rule 16

At common law, finality rule – answers given by a witness in cross examination regarding collateral facts such as credit must be regarded as final (there were exceptions to this rule). Also, at common law, bolster rule – evidence can not be admitted to support credibility of witness (there were exceptions). 17

Attacking S 103 Exception: cross-examination 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. 18

Note ss 43 and 44 19

Cross examination of the accused Leave required under 104 Applies in addition to 102 and 103 Leave not required to xx re (a) is biased or has a motive to be untruthful; or (b) is, or was, unable to be aware of or recall matters to which his or her evidence relates; or (c) has made a prior inconsistent statement. 20

S 106 Exception: rebutting denials by other evidence (1) The credibility rule does not apply to evidence that is relevant to a witness's credibility and that is adduced otherwise than from the witness if: (a) in cross-examination of the witness: (i) the substance of the evidence was put to the witness, and (ii) the witness denied, or did not admit or agree to, the substance of the evidence, and (b) the court gives leave to adduce the evidence. (2) Leave under subsection (1) (b) is not required if the evidence tends to prove that the witness: (a) is biased or has a motive for being untruthful, or (b) has been convicted of an offence, including an offence against the law of a foreign country, or (c) has made a prior inconsistent statement, or (d) is, or was, unable to be aware of matters to which his or her evidence 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. 21

Supporting credit of own witness 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. 22

Graham v The Queen at [8] In exercising the discretion under s 108(3) to permit the adducing of evidence of a prior consistent statement, it is important to bear two matters in mind. First, s 108 creates an exception to the "credibility rule" - the rule that evidence that is relevant only to a witness's credibility is not admissible. Second, it is important to identify how the evidence relates to the statutory premise for its admission. Whether, if admissible, the complaint becomes evidence of the truth of what is asserted is not relevant to the exercise of the discretion to give leave under s 108. The exercise of the discretion under s 108 depends upon the effect of the evidence on the witness's credibility: here, the suggestion of fabrication. 23

[9] How does the making of a complaint six years after the events bear upon that question? Unless the making of the complaint can be said to assist the resolution of that question, the evidence of complaint is not important and would do nothing except add to the length of the hearing. And in this case, it is by no means clear that the making of a complaint six years after the event does assist in deciding whether the complainant had fabricated her evidence. Although trial counsel for the appellant suggested to the complainant, by his last question in cross- examination, that she was "making it all up" the allegation of fabrication of evidence did not loom large in the trial. No question was put, and no answer was given, from which the time of alleged fabrication could be identified. The complaint having been made in 1994, and it having led at once to the start of police investigations, it may be doubted that a jury could gain assistance from its making in deciding whether the complainant had fabricated her story. 24

Attacking credit of own witness – the unfavourable witness Which sections apply? – list them. 25

Example Tran is suing Brown for personal injuries arising from a collision between their cars which occurred on a highway. Immediately after the collision, Tran told his passenger: “That car went through a red light”. At the hearing, Tran testifies that Brown’s car went through a red light. Counsel for Brown then cross-examines Tran and asks the following questions: “You have concocted this story today, haven’t you, because you are actually the driver who went through the red light?” Tran answers “No”. (a) What should Tran’s counsel do? Should Tran’s counsel call the passenger? 26

Green arrived at the scene straight after the collision and gave first aid to both drivers. Green helped pull Brown out of his car, and told the police officer who attended at the scene the following: “As I dragged Brown from his car, he said to me, ‘I am really sorry, I must have dozed off, and when I woke up I was on the wrong side of the road and I hit the other car.’” Tran’s solicitor issued a subpoena on Green to give evidence at the hearing. Green is called as a witness and testifies “I cannot remember any conversation between myself and Brown”. (b)What should Tran’s counsel do? What application may be necessary? 27

Brown then gives evidence in his case. Brown states that “I stopped at the red light and then drove when it was green”. Tran’s counsel has a police notebook entry that records an interview with Brown. In this interview, Brown states “I can’t remember the traffic light”. (c)From the above evidence, how should Tran’s counsel cross-examine Brown? 28