Evidence relevant only to a witness’ credibility

12.5 IP 28 and DP 69 raised the issue of the literal interpretation of s 102 of the uniform Evidence Acts by the High Court in Adam v The Queen.^[4] The decision has led to a situation where the credibility rule will not apply if evidence is relevant both to credibility and a fact in issue, even where the evidence is not admissible for the purpose of proving a fact in issue. Prior to the decision in Adam, the provisions in Part 3.7 had been used to control the admissibility of such evidence. As a result of Adam, that control no longer exists.

12.6 Stephen Odgers SC illustrates this point with the example of prior statements.^[5] Evidence of a prior statement relevant to the facts in issue may not be admissible to prove the facts stated in it because it does not come within one of the hearsay exceptions. It is likely, however, also to be relevant to the witness’ credibility. The literal interpretation of s 102 has the result that the credibility rule does not apply to the evidence. The statement will be admissible for a credibility use without having to satisfy the requirements of Part 3.7. Having been admitted for credibility purposes, s 60 will then apply to lift the hearsay rule so that the evidence is admissible as evidence of the facts stated, unless it is excluded under ss 135–137.

12.7 Substantially similar terminology (‘relevant only because it is relevant to the defendant’s credibility’) is used to define the evidence which attracts the additional protections provided in s 104 to an accused person when cross-examined.^[6] The interpretation in Adam would also exclude the operation of these provisions where credibility evidence is relevant but not admissible for another purpose, reducing the protection available to the accused.

12.8 The Commissions proposed in DP 69 that the uniform Evidence Acts be amended to ensure the credibility provisions apply both to evidence relevant only to credibility and to evidence which is also relevant for another purpose although not admissible for that purpose.^[7] A draft amendment was included in DP 69 which included a new s 101A to define the evidence to which the Part relates and amendments to ss 102, 104 and 108A. The draft of s 101A put forward was in the following terms:

101A Credibility Evidence

(1) A reference in this Part to evidence that is relevant to a witness’s credibility, or to the credibility of a person referred to in s 108A, is a reference to evidence that:

(a) is relevant only because it affects the assessment of the credibility of the witness or person; or

(b) is otherwise relevant but is not admissible.

(2) For the purposes of paragraph (1)(b), ignore sections 60, 77, 135, 136 and 137.

Submissions and consultations

12.9 In DP 69, the Commissions identified support in submissions and consultations for amending the uniform Evidence Acts to address the consequences of the decision in Adam.^[8] The Law Council of Australia submit that s 102 should be amended to read:

Evidence is not admissible that is either (a) relevant only to credibility; or (b) relevant to credibility and, insofar as it is also otherwise relevant, inadmissible under this Act.^[9]

12.10 In DP 69, the Commissions also referred to submissions from the Office of the Director of Public Prosecutions (NSW) (NSW DPP)^[10] and the New South Wales Public Defenders Office (NSW PDO)^[11] which express the view that there is no need to amend s 102 as a result of the decision in Adam.

12.11 In response to the DP 69, Dr Jeremy Gans proposes that the credibility rule in s 102 be re-drafted as follows:

(1) Evidence is not admissible to prove that a witness has or lacks credibility.

(2) Subsection (1) does not apply to evidence that is admitted for a purpose other than to prove that a witness has or lacks credibility.^[12]

12.12 Others submissions support the amendment proposed in DP 69.^[13]

12.13 The NSW DPP,^[14] the Commonwealth Director of Public Prosecutions (CDPP)^[15] and the NSW PDO^[16] submit that the proposed amendment is unnecessary. While the NSW PDO maintains its earlier position, it indicates in its second submission that it does not oppose the amendment.^[17]

The Commissions’ view

12.14 In the Commissions’ view, it is necessary to amend s 102. The Commissions agree with Odgers that it is unsatisfactory to have a situation in which control of evidence relevant for more than one purpose including credibility depends entirely upon the exercise of the discretions and exclusionary rules contained in ss 135 to 137. This has the potential to lead to greater uncertainty, inconsistent outcomes and increased appeals.^[18] Evidence relevant both to credibility and a fact in issue, but not admissible for the latter purpose, should be subject to the same rules as other credibility evidence. Section 102 should be amended to enable it to operate as originally intended. The terms ‘relevant only because it is relevant to the defendant’s credibility’ in s 104 and ‘relevant only to the credibility of the person who made the representation’ in s 108A also need to be addressed through amendment.

12.15 The Commissions considered the draft put forward by Dr Gans as a possible means of achieving the desired outcome. It has the advantage of greater simplicity and is closer to the original draft proposed by the ALRC.^[19] However, the draft presents a difficulty. It assumes that the admissibility of evidence for another purpose is determined before the credibility provisions are applied. The design of the Acts requires the admissibility of the evidence to be determined by the evidence passing through a ‘grid’ system, one component of which is Part 3.7.^[20] Evidence cannot be admitted unless it passes through that grid and therefore the credibility rule must be drafted to define the evidence to which it applies without reference to ‘evidence which has been admitted’. The draft proposed does not do this.

12.16 It is clear, however, that the drafting proposed in DP 69 requires further revision to clarify its operation and make it easier to understand and apply. A revised provision has been included in Appendix 1 and is reproduced below.

A reference in this Part to evidence relevant to the credibility of a witness or other person is a reference to evidence 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 is relevant for some other purpose but is not admissible for, or cannot be used for the other purpose because of a provision of Parts 3.2 to 3.6 inclusive.

Note: Sections 60 and 77 will not be relevant to the application of sub-paragraph (b) because they cannot be applied to evidence that is yet to be admitted.

12.17 The amendment now put forward by the Commissions has two main components. It introduces the notion of purpose, and directs attention to the preceding provisions of the Acts rather than those that follow.

• By referring to evidence which is not admissible for another purpose, the section picks up those provisions which exclude the admission of evidence for a particular purpose (eg ss 59, 76, 91, 97 and 98) rather than those which exclude evidence entirely (eg ss 84, 85 and 86).

• By referring to Parts 3.2 to 3.6, the section removes from consideration the provisions which follow—ie, privileges and the mandatory and discretionary exclusions, leaving the latter provisions to operate if the evidence is not excluded by the credibility provisions.

12.18 The amendment also includes a note to clarify that ss 60 and 77 are not relevant in the determination of admissibility for another purpose because they relate to evidence which has been admitted, and are therefore an exception to the sequential grid structure of the Acts.

12.19 The concept of when the credibility rules should apply is well understood by practitioners, but difficult to express in legislation. While ideally the wording of the amended provisions would be simpler, the somewhat cumbersome drafting is necessary to meet the scrutiny of literal interpretation which it will inevitably meet. In day-to-day practice, however, once understood, it should not require laboured consideration. In practice, it will be clear that certain evidence is either solely relevant to credibility or is relevant to credibility because it has been determined or conceded not to be admissible for another purpose under the preceding provisions of the Act.^[21]