Rebuttal of evidence led on a collateral issue

12.84 Section 108 currently limits the admission of evidence to re-establish credibility to evidence:

• in re-examination from the witness whose credibility has been attacked; and

• in certain circumstances where a prior inconsistent statement has been tendered, prior consistent statements.^[96]

12.85 In DP 69, the Commissions posed the question of whether s 108 should be extended to refer to any evidence relevant to rebuttal evidence adduced under s 106 and if so in what way.^[97]

Submissions and consultations

12.86 A diversity of opinion has emerged from submissions and consultations on this issue. The NSW PDO submits that there is no need to extend s 108.^[98] The Law Society of NSW submits that s 108 should be extended to permit evidence of a prior consistent statement that tends to rationally rebut evidence adduced under s 106.^[99] The NSW DPP supports extension of the section.^[100] Victoria Police submits that s 108 should be extended to allow evidence to be led to rebut evidence led under s 106 whether or not the witness has made denials.^[101]

The Commissions’ view

12.87 In the Commissions’ view it is clearly necessary that the party calling the witness whose credibility is subject to challenge have an opportunity to respond to evidence led in rebuttal of a denial in cross-examination under s 106. The Commissions have come to the conclusion, however, that amendment of s 108 is not necessary to allow this to occur. The proposed amendments to s 106 also allow evidence to be led from other witnesses to rebut evidence adduced under s 106.

12.88 Whenever evidence is led by one party from a witness pursuant to s 106, the opposing party will have an opportunity to cross-examine that witness. Where the cross-examiner has evidence capable of rebutting the evidence of that witness, the substance of that evidence can be put to that witness in cross-examination. Evidence which could contradict that witness’ evidence will be relevant to his or her credibility and, subject to satisfying the requirements of an amended s 106,^[102] will be admissible.^[103]

12.89 The following example illustrates how this might occur. The defendant in a criminal trial calls Dave as an alibi witness. Dave is cross-examined by the prosecutor to the effect that he has a motive to lie because he was paid by the defendant’s wife Gloria to provide an alibi for the defendant. Dave denies this. The prosecutor puts to Dave that he received a large sum of money from Gloria on a particular day. Dave denies this and says Pamela gave him money on that day in payment for a car he sold to her. Pursuant to s 106, the prosecution then calls evidence from Brian who claims to have seen Gloria give Dave money on that day. Brian is cross-examined by the defence and it is put to him that he is mistaken about the identity of the person giving Dave money. Brian denies that he is mistaken. Under the proposed amendment to s 106 the defendant could, with leave, call Pamela to give evidence that she gave Dave money in payment for a car on the day in question to rebut the denial by Brian that he is mistaken as to whom he saw handing over money.

12.90 Provided s 106 is amended as recommended, and so long as the evidence is denied (or not admitted) by the first witness called pursuant under s 106 and the court grants leave, evidence can be led from another witness to rebut evidence led under s 106. There is, therefore, no need to amend s 108 to allow witnesses to be called to directly rebut evidence given by a witness under s 106. The only reason to extend s 108 would be to allow evidence to be led to rehabilitate the credit of a witness in other ways.

12.91 One such way is already recognised in s 108(3). It allows evidence of prior consistent statements to be led, not to rebut the fact that a prior inconsistent statement was made, but to weigh against the effect of the inconsistent statement in the assessment of the witness’ credibility. The question is whether there are any other situations in which evidence should be admissible not to rebut a matter going to credibility, but to rehabilitate the credibility of the witness in another way.

12.92 One other possible area is an existing exception at common law. At common law, where a witness’ credit is attacked on the ground of conduct apparently inconsistent with his or her testimony, there is a line of authority which accepts that evidence may be led from another witness (including an appropriately qualified expert) to explain that conduct, to rehabilitate the credibility of a witness.^[104] Evidence can be led to explain the effects of long term domestic violence or child sexual abuse to rehabilitate the credibility of a witness whose credibility has been attacked on the grounds of behaviour such as remaining with an abusive partner or delayed reporting of sexual abuse. Unless this evidence can be characterised as going to a fact in issue, it is not currently admissible under the uniform Evidence Acts.^[105] However, the amendment recommended below in relation to expert evidence would allow the admission of that evidence.^[106]

12.93 Given the avenues available to lead evidence to re-establish credibility through the recommended amendment to s 106 and the expert evidence exception recommended below, the Commissions are of the view that there is no need to extend s 108.