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:

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 [26]–[36]; Davis v R [2017] NSWCCA 257 at [64]–[74].

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 [3], [32]–[41], [62]–[70], [82]–[83], [96]–[104]; Nicholls v The Queen (2005) 219 CLR 196 at [1], [37]–[56], [168]–[173], [202]–[207], [247]–[262], [285]–[286]. (Both cases are from Western Australia, a non-Evidence Act jurisdiction, but the statements made appear to be of general application.)

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 [47]–[65], following R v AB [2001] NSWCCA 496 at [17]; Adam v The Queen, above, at [60]. 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 [2007] NSWCCA 214 at [38] (special leave to appeal refused [2007] HCATrans 703); Lodhi v R (2007) 179 A Crim R 470 at [174]–[177] (special leave to appeal refused [2008] HCATrans 225); R v Mundine (2008) 182 A Crim R 302 at [33]. 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 [22]. 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 [85]. 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.

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 [2004] NSWCCA 455 at [183] (the refusal of special leave to appeal, [2005] 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 [23].

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 [31]–[36], following Wren v Emmett Contractors Pty Ltd (1969) 43 ALJR 213 at 220–221; Bickel v John Fairfax & Sons Ltd [1981] 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 [177]–[183], [198]–[199], 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 [38]. Character is, however, relevant to credibility: R v Murphy (1985) 4 NSWLR 42 at 54; Melbourne v The Queen (1999) 198 CLR 1 at [30], [72]–[76], [120], [152], [200], 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 [30].

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 [2000] NSWCA 283 at [27]. Conviction of a criminal offence involving serious dishonesty has substantial probative value in relation to a witness’s credit: R v El-Azzi at [251].

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 [2006] NSWCA 343 at [18]–[25].

In Kamm v R [2008] 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 [37], 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 [104]–[106].

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 [24]) 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 [25]–[28]) and held (at [29]) 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 [2009] NSWSC 441, Brereton J accepted that “trawling” in this context was the same as “fishing”, but made it clear (at [5]) 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 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 [2004] NSWCCA 427 at [44]; Blomfield v Nationwide News Pty Ltd [2009] NSWSC 977 (Harrison J) at [19].

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 [38] (which is reproduced only in [2004] 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 [33]–[37]. 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).

In R v Houssein [2003] NSWCCA 74, it was held (at [53]) 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 [23] 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 [38]) 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 [2004] NSWCCA 58 at [230]–[231].

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 [2003] NSWCCA 329, where Gabriel is discussed at [129]–[146]. 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 [136], [144]), 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 [2004] NSWCCA 74 at [223]–[226], 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 [2004] NSWCCA 461 at [50]; PGM v R (2006) 164 A Crim R 426 at [35].

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 [40]) 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 [41], 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 [2004] NSWCCA 455 at [200] (Simpson J), with whom Santow JA agreed at [12]. 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 [12]. At [192], 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 [1999] NSWCCA 66 at [287]–[290], referring to Murdoch v Taylor [1965] 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 [23], [30].

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 [91].

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 [53]–[56], 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

Note:

Section 107 has been repealed.