Credit Flashcards
Why is section 55 relevant to credit?
As the evidence must substantially affect the assessment directly or indirectly of the probability of a fact in issue.
Credit can be relevant to two things what are they, cite authority
Dupas v the Queen (2012):
- 1 the reliability (truthfulness of the witness generally)
- 2 The reliability of the particular testimony given.
What is the dictionary definition of credit and how does it apply to common law
R v rivkin: the definition in the dictionary goes far beyond common law concept of truthfulness of a witness (whether the evidence of the witness is to be believed). And it includes the objective reliability of the witness (the witnesses ability to observe or remember facts and events about which the witness has given or is giving or is to give evidence)
What is the difference between the old and new section 102 of the evidence act?
Old section 102 evidence that is relevant only to a witnesses credibility is not admissible.
New section 102 provides credibility evidence about a witness is not admissible.
What is credibility evidence
Section 101A 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 because it affects the assessment of the credibility of the witness or person and for some other purpose for whixh it is not admissible or cannot be used.
Does section 60 apply to evidence of credibility
No because section 60 cannot apply to evidence that is yet to be admitted. So if evidence is relevant only for credibility theb not asmissible.
Why was section 101A introduxed into the evidence act.
In response to the HCA decision in Adam v the Queen (2001). The legislature’s didnt agree with decision and needed to highlight what credibility evidence was.
In that case the Prior inconsistent statement of a police officer was relevant to credit and other issues. Sextion 102 evidence act didnt operate to exclude the statement and therefore the statement wasnt caught under hearsay provisions and s60 applied. By having dual purposes tbe statement avoided both restrictions.
What is the credibility rule
Section 102 Evidence act: credibility evidence about a witness is not admissible.
What are the exceptions to the credibility rule
S103 evidence act.
The credibility rule doesn’t apply if
1. Evidence was adduced in cross examination and
2. The evidence could substantially affect the assessment of the credibility of the witness.
For the purpose of section 103 Evidence act courts may have regard to what?
Whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was knowingly/recklessly made a false representation when the witness was under an obligation to tell the truth and
The period that elapsed since the acts or events to which the evidence relates were done or occurred.
What is section 104 of the Evidence Act?
A further layer of protection if the witness is being cross examined is the defendant.
The defendant can be cross examined without leave if be
A) is biased or has a motive to be untruthful
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
Further if the defendant in his case has attacked the credibility of a prosecution witness (but in relation to something other then the current proceedings) you can seek leave to cross examine him on credibility issues.
What is section 106 evidence act
Section 106 (1) the credibility rule does not apply to evidence that is relevant to the witnesses credibility and that is adduced otherwise than from the witness if :
A) in cross examination of the witness:
The substance of the evidence was put to the witness and
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.
Leave not required under subsection 1 if witness
- is biased or has a motive for being untruthful
- has been convicted for an offence against a law in a foreign country, or
- has made a prior inconsistent statement
- is or was unable to be aware of matters to which his or her evidence relates. Or
- has knowingly or recklessly made a false representation while under an obligation, imposed, by or under an Australian law or a law of a foreign country to tell the truth.
What did Col v R (2013) suggest about cross examining a witness about prior inconsistent statement
prior inconsistent statement tendered under 103, 106 and 60. Relevant to credibility and denials
What is section 108 evidence act?
Allows credit to he re- established in re examination.
108(1) the credibility rule doesnt apply to evidence adduced in reexamination of a witness.
(3) the credibility rule doesnt apply to evidence of a prior inconsistent statement if
Evidence of PIS has been admitted or it is or will be suggested that evidence given by the witness has been fabricated or reconstructed or is the result of suggestion and the court gives leave to adduce the evidence of the PIS
Does characrer evidence of defendant apply in civil proceedings?
No. Section 109 evidence act.
