another purpose it is not then credibility evidence.
Character of
Character of Accused -Accused - CRIMINAL CASES ONLY (CRIMINAL CASES ONLY (s109s109)) s110(1) -
s110(1) - The hearsay / opinion / tendency / coincidence and credibility rulesThe hearsay / opinion / tendency / coincidence and credibility rules do not applydo not apply toto evidence adduced by an accused to prove their good character
Accused can
Accused can leadlead good character evidence by:good character evidence by:
calling witnesses,calling witnesses,
personally giving evidence (i.e. coming to the witness box -personally giving evidence (i.e. coming to the witness box - sign of good faithsign of good faith))
cross-examining prosecution witnessescross-examining prosecution witnesses
Danger of leading good character evidence
Danger of leading good character evidence via s110(1) abovevia s110(1) above s110(2) & s110(3)
s110(2) & s110(3) - The prosecution can lead evidence to- The prosecution can lead evidence to rebutrebut the accused's good character (orthe accused's good character (or generally prove the accused is not of good character) without worrying about the application of generally prove the accused is not of good character) without worrying about the application of hearsay / opinion / tendency /coincidence / credibility rules in respect of any such evidence to hearsay / opinion / tendency /coincidence / credibility rules in respect of any such evidence to be led by the prosecution (provided the rebuttal is for the same level of generality/particularity) be led by the prosecution (provided the rebuttal is for the same level of generality/particularity) Although no leave is required, the court
Although no leave is required, the court maymay consider discretion to exclude such evidence whereconsider discretion to exclude such evidence where unfair prejudicial effect outweighs its probative force:
unfair prejudicial effect outweighs its probative force: s135 / s137 (s135 / s137 (TKWJ v RTKWJ v R))
Credibility Evidence Credibility Evidence s101A
s101A- defines '- defines 'credibility evidencecredibility evidence' as evidence that is relevant ' as evidence that isrelevant only only because it affects a witness's credibility because it affects a witness's credibility (and may sometimes also affect the credibility of other evidence that is rendered inadmissible due to hearsay (and may sometimes also affect the credibility of other evidence that is rendered inadmissible due to hearsay or tendency/coincidence rules).
or tendency/coincidence rules).
s102 -
s102 - 'credibility evidence' about witnesses'credibility evidence' about witnesses is prima facie inadmissibleis prima facie inadmissible (subject to exceptions)(subject to exceptions)
s103
s103 - is an exception to the rule in s102 and allows the prosecution to damage witness credibility by- is an exception to the rule in s102 and allows the prosecution to damage witness credibility by introducing a prior
introducing a prior inconsistent statement to challenge their testimony (during cross-examination).inconsistent statement to challenge their testimony (during cross-examination).
Although
Although s103s103 does not require leave, it requires persuasive arguments which willdoes not require leave, it requires persuasive arguments which will 'substantially''substantially' impact the witness's credibility, such as by showing (
impact the witness's credibility, such as by showing (non-exhaustively non-exhaustively ):): s103(2)(a)
s103(2)(a) - witness knowingly/recklessly made false representations when obliged to t- witness knowingly/recklessly made false representations when obliged to t ell truthell truth
s103(2)(b)
s103(2)(b) - significant amount of time elapsed since the occurrence of relevant incident/event- significant amount of time elapsed since the occurrence of relevant incident/event
In such situations (subject to leave)
In such situations (subject to leave) s108(3)s108(3) maymay permit a witness to use their prior permit a witness to use their prior consistentconsistent statement:
statement: (a)
(b)
(b) in attempt to invalidate any express or implied allegations of them fabricating /in attempt to invalidate any express or implied allegations of them fabricating / reconstructing their testimony
reconstructing their testimony Finality principle -
Finality principle - Generally,Generally, the cross examiner is bound by the cross examiner is bound by answers given in respect of answers given in respect of questionsquestions that solely relate to credibility and cannot later lead contradictory evidence.
that solely relate to credibility and cannot later lead contradictory evidence.
s106(1) -
s106(1) - If during cross examination a witness denies facts/assertions relating to their credibility,If during cross examination a witness denies facts/assertions relating to their credibility, then depending on nature/importance of
then depending on nature/importance of fact/assertion denied, party wanting to lead fact/assertion denied, party wanting to lead evidence toevidence to rebut such denial
rebut such denial maymay be granted leave.be granted leave. (s106(s106 is anis an exception to theexception to the finality principle finality principle))
s106(2) -
s106(2) - ButBut LEAVE IS NOT REQUIREDLEAVE IS NOT REQUIRED where evidence is being led to show where evidence is being led to show witness:witness: (f)
(f) has motive for being biased or untruthful,has motive for being biased or untruthful, (g)
(g) was convicted of an offencewas convicted of an offence (h)
(h) has made prior inconsistent statementshas made prior inconsistent statements (i)
(i) was unable/unlikely to have knowledge of was unable/unlikely to have knowledge of details/matters given as evidencedetails/matters given as evidence (j)
(j) knowingly/recklessly made false representations when obliged to tell knowingly/recklessly made false representations when obliged to tell truthtruth Prosecution Delays in
Prosecution Delays in CRIMINAL CASESCRIMINAL CASES
s165Bs165B - Where the defendant (- Where the defendant (makes application and makes application and ) satisfies the Court that prosecution delay) satisfies the Court that prosecution delay
causes
causes defendant to suffer significant forensic disadvantage, the courtdefendant to suffer significant forensic disadvantage, the court mustmust inform jury about:inform jury about:
the the nature of nature of that disadvantagethat disadvantageANDAND
need to take that disadvantage into account when considering the evidence (need to take that disadvantage into account when considering the evidence (Longman,Longman,
Crofts, Tully Crofts, Tully ).).
s61(1)(b) -s61(1)(b) - Crimes Act Crimes Act 1958 (Vic) - jury directions about complainant's delay in reporting sexual1958 (Vic) - jury directions about complainant's delay in reporting sexual
offences committed against them offences committed against them
there may be good reasons why there may be good reasons why complainants delay/hesitate to report sexual offencescomplainants delay/hesitate to report sexual offences
against them against them
judge shouldn't normally infer that evidence is judge shouldn't normally infer that evidence is less credible due to delay (cf less credible due to delay (cf Graham v RGraham v R))
CHARACTER OF ACCUSED - (
CHARACTER OF ACCUSED - (CRIMINAL CASES ONLYCRIMINAL CASES ONLY) Part 2) Part 2
- Other dangers for the Accused under - Other dangers for the Accused under s110s110
s112
s112 - Where the accused- Where the accused chooseschooses1919to give sworn evidence,to give sworn evidence,2020then (then (subject to leavesubject to leave:: Stanoevski Stanoevski )) they
they open themselvesopen themselves to being cross-examined (about their character) by the prosecution.to being cross-examined (about their character) by the prosecution. Subject to certain restrictions,
Subject to certain restrictions, s27s27 operatesoperates to permit cross examining the accused about otherto permit cross examining the accused about other aspects of the case o
aspects of the case o nce they come in the witness box.nce they come in the witness box.
Hurdles for prosecution Hurdles for prosecution
While the LEAVE requirement in
While the LEAVE requirement in s112s112 protects accusedprotects accused from cross-examination about 'from cross-examination about 'CharacterCharacter',', s104(2)
s104(2) protects them from protects them from being cross-examined being cross-examined about 'about 'CredibilityCredibility' by also requiring LEAVE.' by also requiring LEAVE.
However, under
However, under s104(3)s104(3) the prosecutorthe prosecutor does not need leavedoes not need leave to try to prove that the Accused:to try to prove that the Accused: (a)
(a) has motive for being biased or untruthful,has motive for being biased or untruthful, (b)
(b) can't be aware or recall certain matters relating to their testimonycan't be aware or recall certain matters relating to their testimony (c)
(c) has made prior inconsistent statementshas made prior inconsistent statements
s104(4) -
s104(4) - CourtCourtmust only grant leave wheremust only grant leave where the accused gives evidencethe accused gives evidence—— (a)
(a) suggesting that the prosecution's witness has a tendency of being untruthful;suggesting that the prosecution's witness has a tendency of being untruthful; ANDAND (b)
(b) solely or primarily relevant to the witness's credibility.solely or primarily relevant to the witness's credibility.
s104(6) -
s104(6) - The CourtThe Court must notmust not grant leave to a co-accused (who wants to cross-examine the accused)grant leave to a co-accused (who wants to cross-examine the accused) unless:
unless: (a)
(a) the accused gavethe accused gave adverseadverse evidence against the co-accused,evidence against the co-accused, ANDAND (b)
(b) thethe adverseadverse evidence against the co-accused has beenevidence against the co-accused has been admittedadmitted
s111(1) -
s111(1) - The hearsay and tendency rules don't apply to opinions about a defendant's characterThe hearsay and tendency rules don't apply to opinions about a defendant's character given by a co-accused/co-defendant who has
given by a co-accused/co-defendant who has specialized/expert knowledge (based on study, trainingspecialized/expert knowledge (based on study, training or experience)
or experience) and their opinion is wholly basedand their opinion is wholly based on such knowledge (on such knowledge (Lowery v RLowery v R))
19 19
Volition of the Accused to come to witness box as prosecution can't call them to give evidence-in-chief: Volition of the Accused to come to witness box as prosecution can't call them to give evidence-in-chief:s17s17
20 20
NB: