Published by Geoff Harrison | 6 October 2024
Section 108B of the Evidence Act 1995 ('the Act') places further restrictions upon the admission of credibility evidence against an accused. Credibility evidence is defined at s101A of the Act. If evidence is only relevant to a defendant's credibility then leave is required (which is also subject to s108B(4) of the Act), to adduce such evience unless the evidence is about whether the defendant:
(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 previous representation relates, or
(c) has made a prior inconsistent statement.
Other Sources:
Cases:
Extracted Legislation:
EVIDENCE ACT 1995 - SECT 108A Admissibility of evidence of credibility of person who has made a previous representation
Admissibility of evidence of credibility of person who has made a previous representation
(1) If-
(a) evidence of a previous representation has been admitted in a proceeding, and
(b) the person who made the representation has not been called, and will not be called, to give evidence in the proceeding,
credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person’s credibility.
(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 person who made the representation knowingly or recklessly made a false representation when the person was under an obligation to tell the truth, and
(b) the period that elapsed between the doing of the acts or the occurrence of the events to which the representation related and the making of the representation.
EVIDENCE ACT 1995 - SECT 108B Further protections: previous representations of an accused who is not a witness
Further protections: previous representations of an accused who is not a witness
(1) This section applies only in a criminal proceeding and so applies in addition to section 108A.
(2) If the person referred to in that section is a defendant, the credibility evidence is not admissible unless the court gives leave.
(3) Despite subsection (2), leave is not required if the evidence is about whether the defendant-
(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 previous representation relates, or
(c) has made a prior inconsistent statement.
(4) The prosecution must not be given leave under subsection (2) unless evidence adduced by the defendant has been admitted that-
(a) tends to prove that a witness called by the prosecution has a tendency to be untruthful, and
(b) is relevant solely or mainly to the witness’s credibility.
(5) A reference in subsection (4) to evidence does not include a reference to evidence of conduct in relation to-
(a) the events in relation to which the defendant is being prosecuted, or
(b) the investigation of the offence for which the defendant is being prosecuted.
(6) Another defendant must not be given leave under subsection (2) unless the previous representation of the defendant that has been admitted includes evidence adverse to the defendant seeking leave.
EVIDENCE ACT 1995 - SECT 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.
Note 1: Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted.
Note 2: Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.
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