Legal Research > Evidence Act tables

Sections 102-112

Part 3.7: Credibility

Section 102: The credibility rule


Milat
NSWSC (Hunt CJ at CL) 9.4.1996
Evidence Act 1995 (NSW) s.102 - murder - at request of accused Crown led evidence of possible sighting of victim after time Crown alleged victim killed - Crown sought to lead further evidence casting doubt on reliability of this evidence - whether further evidence infringed credibility rule.
Held: credibility includes reliability - attack on reliability of evidence now restricted - evidence inadmissible where goes only to reliability of witness’ statement.

H
(1997) 92 A Crim R 168
Evidence Act 1995 (NSW) s.102 - sexual assault - admissibility of evidence of complaint.
Held: under s.102 evidence of complaint inadmissible if relevant only to credibility - if evidence admissible as “first hand” hearsay under s.66 s.102 has no application.

Preston
NSW CCA 9.4.1997
Evidence Act 1995 (NSW) s.102 - sexual assault - evidence of complainant’s belief that accused had assaulted people and shot someone tendered as evidence to explain why she did not call out for help
Held not tendered as tendency or coincidence evidence - relevant to issue of consent - admissible although does show tendency or credibility - not unfairly prejudicial to accused although requires directions as to limits of use of evidence.

Fowler
NSWSC (Dowd J) 6.5.1997
Evidence Act 1995 (NSW) s.102 - murder - defence sought to tender evidence of criminal record of witness dating after offence.
Held: evidence of criminal record after event cannot be extrapolated back.

Fowler
NSWSC (Dowd J) 15.5.1997
Evidence Act 1995 (NSW) s.102 - application by defence to cross-examine Crown witness as to violent disposition of witness, criminal history of witness after murder and tendency of witness to influence jurors and other witnesses.
Held: evidence as to violent disposition not relevant to fact in issue and not going to credibility - leave refused - evidence of criminal record after event cannot be extrapolated back - general discussion of credibility rule s.102 and exceptions under s.103 - leave granted to cross-examine.
 
V
(1998) 100 A Crim R 488
Evidence Act 1995 (NSW) s.102 - evidence of witness not admitted because went only to complainant’s credit
Held evidence admissible as it was not related to credit only but bore upon the nature of relationship - evidence of witness probably would have had substantial probative value

Heron
NSW CCA [312] 17.8.2000
Evidence Act 1995 (NSW) s.102 - Crown witness asked by Crown if he was an optometrist by profession
Held s.102 relates only to evidence that is relevant only to credibility - occupation of witness cannot be said to be relevant only to credibility

Ngo
(2001) 122 A Crim R 467; NSWSC [595] Dunford J 8.3.2001
Evidence Act 1995 (NSW) s.102 - murder - Crown leading evidence from indemnified witnesses - application to lead evidence of motive and reasons for approaching police in evidence in chief
Held: evidence excluded by s.102 - can only be led in re-examination in response to attack on credit - but Crown can deal with issue in opening address

Gonzalez-Betes
NSW CCA [226] 8.6.2001
Evidence Act 1995 (NSW) s.102 - drug importation - Crown witness had pleaded guilty and received reduced sentence.
Held rules as to credibility evidence do not prevent evidence that Crown witness has pleaded guilty and received discount for assistance

Adam v The Queen
(2001) 207 CLR 96; HCA [57] 11.10.2001
Evidence Act 1995 (NSW) s.102 - murder of off-duty police officer during scuffle outside hotel - Crown witness TS made statements to police supporting crown case - became clear at trial TS would give evidence unfavourable to Crown – Crown given leave under s.38 to cross examine on prior inconsistent statements - judge also ruled statements could be used as proof of facts asserted
Held: (Gleeson CJ, McHugh, Kirby and Hayne JJ) - dismissing appeal - no error in grant of leave pursuant to s.38 - evidence was not excluded by credibility rule pursuant to s.102 - when considering application of s.102 judge considers whether evidence is relevant only to credibility, not whether it is admissible only as going to credit - in this case evidence was relevant not just to credibility but also directly relevant to facts in issue

Rahme
NSW CCA [414] 16.10.2001
Evidence Act 1995 (NSW) - s102 - possession of drugs - two co-accused - use of evidence of admission - whether TJ erred in admitting evidence of statements made by appellant in ROI - whether TJ erred in failing to direct jury evidence by appellant in ROI could only be used in respect of credibility.
Held: TJ erred in permitting appellant’s co-accused to use appellant’s ROI, which had been excluded under s.84, in manner adverse to appellant’s interests - failure to direct jury evidence to be confined to appellant’s credibility - appeal allowed.

Chen
(2002) 130 A Crim R 300; NSW CCA [174] 11.6.2002
Evidence Act 1995 (NSW) - s102, 103 - Crown permitted to lead evidence that crown witness made written undertaking to give evidence
Held: no breach of s.102 - followed Adam (2001) 183 ALR 625 in relation to use of prior inconsistent statement - evidence of prior inconsistent statement relevant to credibility - also relevant to other issues - because relevant to other issues s.102 does not apply and do not need to consider s.103 - because relevant to more than credibility an exception within s.60 and admissible as to truth of contents of statement

Skaf
NSW CCA [74] 7.4.2004
Evidence Act 1999 (NSW) s.102 –multiple sexual assault offences - evidence from doctor that medical examination of complainants was consistent with their history admitted – medical evidence neutral
Held: appeal dismissed – medical evidence should not have been admitted – offended s.102 and unfairly bolstered complainant’s credibility – followed RTB [2002] NSW CCA 104 – Crown should stop leading such evidence – no miscarriage where no objection taken at trial
 
Gonzales
(2007) 178 A Crim R 232 at [21]-[26]
Evidence Act 1995 (NSW) s 102
Held: following Reid [1999] NSWCCA 258 – phrase ‘is not admissible’ means not admissible if objection made – where no objection evidence not wrongly admitted
 
Peacock
NSW CCA [264] 14.11.2008
Evidence Act 1995 (NSW) s.102 – attempted murder – Victim assaulted by two brothers in national park – Crown claimed motive for assault was involvement of V in burglary of appellants’ house – V admitted involvement at trial and nominated alleged co-offender – alleged co-offender not called at trial – denied involvement in subsequent statement – whether Crown should have called witness
Held: appeal dismissed
(per Simpson J, McClellan CJ at CL agreeing) evidence only excluded under s.102 if solely related to credit – evidence in this case relevant to more than credibility – Crown sought to provide identification of assailants through motive – appellants would have been entitled to call witness themselves – no miscarriage of justice – no criticism to be made of Crown in circumstances of case
 
Lysle
[2012] NSWCCA 20
Evidence Act 1995 (NSW) s.118 – child sexual assault – appellant asked in cross –examination
Did it concern you that he didn't ask her any questions about that when he was cross-examining her?
Did it concern you that your barrister didn't ever put to (N) that she was aware that you were going to go into the caravan and take (the complainant) out?
Held: questions not unfair but on the evidence, all questions were irrelevant and inadmissible since they could not substantially affect the assessment of the appellant’s credibility as required under ss 102 and 103 Evidence Act.

 

 


 

Section 103: Exception: Cross-examination as to credibility

Beattie

(1996) 89 A Crim R 393
Evidence Act 1995 (NSW) s.103 - drug offences - judge rejected cross-examination of police witnesses about allegations made at Royal Commission
Held: Judge wrong in rejecting questioning - questions relevant because affirmative answer would have substantial probative value on credibility of witness - fact that witness unlikely to give affirmative answer irrelevant.

Uhrig
NSW CCA 24.10.1996
Evidence Act 1995 (NSW) s.103
Held: motive to lie where it exists is very relevant to witness’ credit and usually admissible under s.103 - p.16 per Hunt CJ at CL

Fowler
NSWSC (Dowd J) 6.5.1997
Evidence Act 1995 (NSW) s.103 – murder - defence sought to cross-examine crown witness as to nephew’s criminal record incurred years after murder.
Held: evidence inadmissible - cannot cross-examine witness on character evidence where relevant only to credit - fails to fall into exception under s.103 - cannot extrapolate early bad character from later bad character

Fowler
NSWSC (Dowd J) 15.5.1997
Evidence Act 1995 (NSW) s.103 – murder - application by defence to cross-examine Crown witness as to violent disposition of witness, criminal history of witness after murder and tendency of witness to influence jurors and other witnesses.
Held: cross-examination as to witness’ criminal record for attempting to influence witness comes within s.103 - record for assault does not - evidence must be relevant to witness’ credibility as opposed to just character.

Fleming
NSW CCA 26.5.1997
Evidence Act 1995 (NSW) s.103 - sexual assault offences - deputy principal and 15y student - crown case relied primarily upon complainant’s evidence - on appeal appellant sought to lead fresh evidence suggesting complainant lied.
Held: at common law witness could give evidence that they would not believe evidence given by another on oath - under the Evidence Act evidence no longer admissible - “credibility” under the Dictionary s.3 includes “reliability” - restrictions of Part 3.7 apply - unless evidence had substantial probative value in relation to credit (s.103) complainant could be cross-examined as to her untruthfulness but if denied s.106 would prevent evidence of rebuttal.

RPS
NSW CCA 13.8.1997
Evidence Act 1995 (NSW) s.103 - sexual offences on daughter - evidence of partial admissions to mother of complainant
Held: definition of “substantial probative value” in s.3 Dictionary does not apply - must have probative value in relation to credit of witness.

Richards
NSW CCA 3.4.1998
Evidence Act 1995 (NSW) s.103 - convicted of supply and possess pistol - Crown case based entirely on evidence of police - judge rejected cross-examination of police about allegations made at Royal Commission
Held: followed Beattie (1996) 89 A Crim R 393 - counsel should be permitted to put to police questions about allegation made at Royal Commission - focus on conduct alleged, not fact that allegation was made - where possible answer to question has significant probative value should permit questioning - fact that answer unlikely to be given does not exclude evidence.

V
(1998) 100 A Crim R 488; NSW CCA 16.4.1998
Evidence Act 1995 (NSW) s.103 - sexual offences against step-daughter - complainant alleged appellant had pinched her on breasts in front of B and said “I’m allowed to, she’s my daughter”. - judge refused to allow appellant to call B to deny incident - whether denial would only go to credit of complainant
Held: (allowing appeal) - found McHugh’s discussion in Palmer (1998) 72 ALJR 254 at 265-6, 267 of overlap between evidence as to credit alone and evidence as to fact in issue “helpful and persuasive” - evidence of B went beyond credit to nature of relationship - credit of complainant was linchpin of crown case - B’s evidence would have affected credit - substantial probative value - evidence should have been admitted

McGoldrick
NSW CCA 28.4.1998
Evidence Act 1995 (NSW) s.103 - drug offences - sought to cross-examine police about allegations made at Royal Commission that arresting officer had taken bribes from alleged drug dealer
Held: followed Beattie (1996) 89 A Crim R 393 and Hasencamp NSW CCA 24.2.1998 - evidence should have been permitted - not necessary to show allegation against police officer same as alleged misconduct in case.

Burns
(2003) 137 A Crim R 557; NSW CCA [30] 25.2.2003
Evidence Act 1995 (NSW) s.103 - judge refused leave for counsel to cross-examine Crown witness on criminal record
Held: applied reasoning in Palmer (1998) 193 CLR 1 per McHugh J (at 22-24) - questions as to criminal record capable of producing replies affecting credibility - relevant to facts in issue given importance of evidence - evidence did have substantial probative value

Lumsden
NSW CCA [83] 3.4.2003
Evidence Act 1995 (NSW) s.102, s.103 – drug supply – whether cross-examination of two defence witnesses regarding criminal conviction for dishonesty and late admission re possession of drugs impermissible.
Held: No breach of s102 as matters had substantial probative value within s.103 - first witness’ conviction for goods in custody has bearing on assessment of reliability as witness of truth - cross-examination of second witness (A’s son) relating to his admission of possession of cannabis plants found at A’s premises at time they were found, contrasted with his admission, only at time of his mother's trial, of possession of amphetamines found during the same search was admissible: R v Beattie (1996) 40 NSWLR 155 at 163 applied.

El-Azzi
NSW CCA [455] 16.12.2004
Evidence Act 1995 (NSW) s.104, s.103 – Conspiracy to manufacture large commercial quantity methylamphetamine – ex police officer – cross-examined Crown witnesses as to credit – Crown given leave to cross-examine accused about police departmental charges relating to unauthorized holiday in Bali and failure to make occurrence pad entry, alleged threats made to co-offenders and criminal conviction relating to corruption as a police officer
Held: dismissing appeal - (per Sperling J) - leave should not have been granted in relation to departmental charges – not relevant – no miscarriage of justice – cross-examination as to alleged threats to co-offenders innocuous in context of trial – no error in exercise of discretion in allowing cross-examination in relation to prior criminal conviction – evidence had probative value satisfying test under s.103 – no error in exercise of discretion in allowing evidence under s.104 – prior conviction of different nature and not especially prejudicial - trial judge appreciated essential question was one of fairness and that prospect of unfair prejudice a critical consideration
(per Simpson J) agree with Sperling J in relation to departmental charges and alleged threats to co-offenders – Crown cannot cross-examine accused as to prior criminal conviction unless evidence has substantial probative value under s.103(1) and leave has been granted under s.104(2) – “substantial probative value” under s.103 means evidence that rationally affects the assessment of the credit of the accused particularly in relation to the evidence he or she has or will give at the trial - (following RPS NSW CCA 13.8.1997) – trial judge did not specifically address this question but no miscarriage because evidence did have substantial probative value under s.103 – when considering grant of leave under s.104(2) take into account ss.192, 135(a) and 137 – question of fairness balancing unfair prejudice with probative value – nature of cross-examination of Crown witnesses a relevant factor – open to judge in circumstances of this case to grant leave, particularly in view of extensive nature of cross-examination – “I emphasise that it would not be every case where an attack is made upon the credibility of the Crown witnesses that would warrant the exercise of the 104(2) discretion to grant leave to cross-examine in relation to such a serious matter. Caution would have to be exercised in assessing overall fairness, and in the balancing exercises. Legal representatives of persons charged with serious criminal offences must have substantial flexibility in their approach to cross-examining prosecution witnesses, without fear that attacks on those witnesses, if made within proper limits, will expose their clients to the potential disclosure of their criminal histories, or alternatively, operate as a disincentive to their exercising the option to give evidence.” [200]
 
Lodhi
[2006] NSWSC 670, Whealy J, 19.5.2006
Evidence Act 1995 (NSW) s.103(1) – terrorism offences – Crown seeking to cross-examine accused as to lies made in job application – application suggested accused working for Sydney Company when actually in Pakistan working as an architect
Held: evidence allowed – question of “substantial probative value considered”
[18] It seems to me that before evidence can have substantial probative value in respect of the credit of a witness, it must have such potential to affect the jury's assessment of the credit of the witness in respect of the evidence he or she has given that the credit of the witness cannot be determined adequately without regard to it. If the probative value of the evidence can be any less than this, there does not appear to me to be any real distinction between the terms "significant probative value" and "substantial probative value" as they are used in the Act.
[19] To my mind, there must be such a connection between the evidence to be admitted and the credit of the witness at the time of giving the evidence that the former is likely to affect the latter in a substantial way. That seems to me to be the import of the matters set out in s 103(2) to which the Court must have regard when determining whether the evidence is of sufficient probative value so as to justify admission, notwithstanding the credibility rule.
 
Jones (No.3)
[2007] NSWSC 771, Buddin J, 3.4.2007
Evidence Act 1995 (NSW) s.103(2)(b) – murder – fight between two families in caravan park – issue of self defence and provocation –application to cross-examine Crown witness as to criminal history – dealt with for minor dishonesty offences over ten years previously – allegations of further dishonesty matters
Held: evidence allowed – credibility of witness of crucial importance – eyewitness to events and related to deceased – substantial probative value
 
Jones (No.6)
[2007] NSWSC 1157, Buddin J, 11.4.2007
Evidence Act 1995 (NSW) s.103(1) – murder – fight between two families in caravan park – issue of self defence and provocation –application to cross-examine Crown witnesses as to criminal history – dealt with for common assault, malicious damage and affray – one witness denied in cross-examination being type of person to arm himself with weapon – question of victims and family (including witnesses) armed during fight disputed
Held: evidence allowed – credibility of witness of crucial importance – eyewitness to events and related to deceased – substantial probative value
 
Jones (No.7)
[2007] NSWSC 1158, Buddin J, 17.4.2007
Evidence Act 1995 (NSW) s.103(2)(b) – murder – fight between two families in caravan park – issue of self defence and provocation –application to cross-examine Crown witness as to criminal history – dealt with for making statement with intent to defraud – whether time delay too great
Held: evidence allowed – credibility of witness of crucial importance – eyewitness to events and related to deceased – substantial probative value
 
Hawi (No.14)
[2011] NSWSC 1660 4.8.2011
Evidence Act 1995 (NSW) s.103 – murder, riot and affray – violent confrontation between two motorcycle gangs at airport resulting in death – application to tender as evidence informal notes taken by police officer who interviewed Crown witness – witness involved in incident – witness provided induced statement to police and gave evidence for Crown – police officer took informal notes to assess whether to proceed with induced statement – witness cross-examined on some of the notes – whether notes could be used to attack credibility of witness
Held: application refused – not satisfied notes could substantially affect credibility of witness
 
Hawi (No.13)
[2011] NSWSC 1659 28.7.2011
Evidence Act 1995 (NSW) s.103 – murder, riot and affray – violent confrontation between two motorcycle gangs at airport resulting in death – application to tender medical records of Crown witness - witness involved in incident –provided induced statement to police and gave evidence for Crown – in notes from prison health file witness had admitted taking heroin – denied ever using heroin in cross-examination – in notes from hospital file in 2001 witness expressed having thoughts of harming or killing people after receiving injury to head – also denied this in cross-examination
Held: application allowed in part – notes from prison file relevant on basis jury could conclude use of heroin unlikely to be something a person would forget – relevant to credibility of witness – notes from hospital file not admitted – in circumstances of making original assertions would not substantially affect credibility
 
Lysle
[2012] NSWCCA 20; 29.2.2012
Evidence Act 1995 (NSW) s.102, 103 – sexual assault – whether Crown’s cross-examination of A impermissible – Crown asked A “Had you told your barrister about that episode before (the complainant) gave evidence?”; “ Did it concern you that he didn't ask her any questions about that when he was cross-examining her?” “Did you bring to his attention when he was cross-examining her that he hadn't ever put to her that there was an occasion where you had carried her from her bed up –“; Did it concern you that your barrister didn't ever put to (N) that she was aware that you were going to go into the caravan and take (the complainant) out?”
Held: The first and third questions were unfair and should not have been asked. An accused should not be asked, certainly for the first time in the presence of a jury, as the content of conversations with his legal advisers.
The three highlighted questions were irrelevant. Both V and A said A had carried V from the caravan on one occasion which suggests there was nothing in the evidence to the contrary and that there was no occasion for A’s counsel to question V about that aspect of her evidence. Furthermore, directed as those three questions were to A’s credibility, ss 102 and 103 made them inadmissible unless they could substantially affect the assessment of A’s credibility. Because of the similarity of the evidence of V and A, those questions could not.
 
Montgomery
[2013] NSWCCA 73
Evidence Act 1995 (NSW) s.103 – conspiracy supply drugs – alibi witness P cross-examined by Crown about 40 year old criminal history convictions – whether evidence of substantial probative value – whether miscarriage of justice.
Held: Ground upheld (Proviso applied. Appeal dismissed). At [134]-]135]: Unable to see how P’s convictions (as admitted) had potential to have persuasive bearing upon credit. Crown's submission at trial that probative value of P’s convictions over 40 years earlier reflected a disregard for the law and the police, failed to appreciate need to establish necessary connection between the evidence sought to be adduced and whether the witness ought to be believed in order for it to satisfy the test of substantial probative value. Citing R v El-Azzi [2004] NSWCCA 455. While in other circumstances questioning an alibi witness about criminal convictions for dishonesty might satisfy the test of admissibility under s 103(1) (see R v Lumsden [2003] NSWCCA 83 per Hulme J at [56], Mason P agreeing at [3]), the sheer age of P’s convictions deprived the evidence of the capacity to bear rationally and logically upon his veracity and for that reason the cross-examination was unfair and productive of prejudice.
 
Col
[2013] NSWCCA 302
Evidence Act 1995 (NSW) s.103 – cause grievous bodily harm with intent – alleged to have set fire to victim – victim retracted initial statement to police – cross-examined under s.38 – initial statement to police and retraction both admitted as evidence at trial – whether material should not have been admitted
Held: Appeal dismissed – material admissible under s.103 – adduced by Crown in cross-examination and substantially affected victim’s credibility – admissible under s.106 as prior inconsistent statement – once admitted became evidence of facts contained in representation under s.60 – no prejudice under s.137 given clear and unambiguous content of statement – not rendered inadmissible under s.43(2)

 

 

Section 104: Further Protections: Cross-examination of Accused

Hancock

NSW CCA 21.11.1996
Evidence Act 1995 (NSW) s.104 - AOABH - cross-examined complainant about previous incident where complainant attacked man with hammer - relevant to self defence - Crown granted leave to cross-examine appellant on criminal record - included previous assault - evidence dealt with solely on issue of credit.
Held: appellant’s criminal record was clearly tendency evidence and therefore had to satisfy the conditions of s.97 and 101 - in this case substantial prejudice to appellant - evidence should have been excluded

Diamond
NSW CCA 19.6.1998
Evidence Act 1995 (NSW) s.104 - wound with intent to do GBH - prison stabbing - trial judge ruled that cross-examination of victim’s criminal record would allow crown to introduce appellant’s record.
Held: s.104(4)(b) - criminal record went solely to credit of victim - trial judge’s ruling correct.
Fernando & Fernando
NSW CCA [66] 14.4.1999
Evidence Act 1995 s.104 - murder
Held: no improper cross-examination by co-accused - co-accused’s evidence was adverse in that he presented himself as lesser player in crime - s104(6) to be considered within setting of provision concerned with restricting cross-examination of an accused directed to issue of credibility - credibility did not arise here.

Le
(2002) 130 A Crim R 256; NSW CCA [193] 24.5.2002
Evidence Act 1995 s.104 - manslaughter - no leave sought to cross-examine witness as to credit only
Held: cross-examination prejudicial - verdict unreasonable - dangerous to allow conviction to stand - appeal allowed - verdict of acquittal entered

Houssein
NSW CCA [74] 28.3.2003
Evidence Act 1995 s.104 - maliciously inflict GBH - stabbed brother - appellant gave evidence of concern for mother being subjected to physical harassment - Crown permitted to cross-examine appellant of AVO awarded to mother against appellant
Held: evidence of AVO should not have been led - not relevant to evidence given by appellant or any issue in case - in any event prejudice of evidence so great should have been excluded.

El-Azzi
NSW CCA [455] 16.12.2004
Evidence Act 1995 (NSW) s.104, s.103 – Conspiracy to manufacture large commercial quantity methylamphetamine – ex police officer – cross-examined Crown witnesses as to credit – Crown given leave to cross-examine accused about 2 police departmental charges relating to unauthorized holiday in Bali and failure to make occurrence pad entry, alleged threats made to co-offenders and criminal conviction relating to corruption as a police officer
Held: dismissing appeal - (per Sperling J) - leave should not have been granted in relation to departmental charges – not relevant – no miscarriage of justice – cross-examination as to alleged threats to co-offenders innocuous in context of trial – no error in exercise of discretion in allowing cross-examination in relation to prior criminal conviction – evidence had probative value satisfying test under s.103 – no error in exercise of discretion in allowing evidence under s.104 – prior conviction of different nature and not especially prejudicial - trial judge appreciated essential question was one of fairness and that prospect of unfair prejudice a critical consideration
(per Simpson J) agree with Sperling J in relation to departmental charges and alleged threats to co-offenders – Crown cannot cross-examine accused as to prior criminal conviction unless evidence has substantial probative value under s.103(1) and leave has been granted under s.104(2) – “substantial probative value” under s.103 means evidence that rationally affects the assessment of the credit of the accused particularly in relation to the evidence he or she has or will give at the trial - (following RPS NSW CCA 13.8.1997) – trial judge did not specifically address this question but no miscarriage because evidence did have substantial probative value under s.103 – when considering grant of leave under s.104(2) take into account ss.192, 135(a) and 137 – question of fairness balancing unfair prejudice with probative value – nature of cross-examination of Crown witnesses a relevant factor – open to judge in circumstances of this case to grant leave, particularly in view of extensive nature of cross-examination – “I emphasise that it would not be every case where an attack is made upon the credibility of the Crown witnesses that would warrant the exercise of the 104(2) discretion to grant leave to cross-examine in relation to such a serious matter. Caution would have to be exercised in assessing overall fairness, and in the balancing exercises. Legal representatives of persons charged with serious criminal offences must have substantial flexibility in their approach to cross-examining prosecution witnesses, without fear that attacks on those witnesses, if made within proper limits, will expose their clients to the potential disclosure of their criminal histories, or alternatively, operate as a disincentive to their exercising the option to give evidence.” [200]


 

Section 106: Exception: rebutting denials by other evidence

Mrish

NSWSC (Hidden J) 15.8.1996
Evidence Act 1995 (NSW) s.106 – murder - bias or motive for being untruthful
Held: evidence must be put to witnesses and if denied person to whom they allegedly made statements may be recalled to prove their statements as evidence relates to their motive for being untruthful and to having made prior inconsistent statements

PLV
(2001) 51 NSWLR 736; 123 A Crim R 194; NSW CCA [282] 25.7.2001
Evidence Act 1995 (NSW) s.106 - sexual offences committed long time ago on younger sister - attempt to lead fresh evidence challenging sister’s recovered memory.
Held: evidence challenging recovered memory goes only to ability to recall evidence not whether witness was aware of evidence - s.106(d) refers only to question of whether witness is “unable to be aware of evidence” - not appropriate to extend section to include challenge to witness’s ability to recall evidence.

Galea
(2004) 148 A Crim R 220; NSW CCA [227] 28.7.2004
Evidence Act 1995 (NSW) s.106 - Accessory after fact to murder – assisted lover dispose of dead body – sought to establish Crown witness had provided assistance instead – witness denied involvement - sought to tender evidence from psychologist as to likely effect of drug use on witness at time of alleged offence – sought to establish drug use would have affected ability of witness to remember events at time of offence
Held: appeal dismissed - evidence under s.106(d) only permitted where it has a tendency to prove witness was unable to be aware of matters, not unable to recall matters – followed PLV (2001) 51 NSWLR 736
 
Ryan (No.7)
[2012] NSWSC 1160, SG Campbell J
Evidence Act 1995 (NSW) s.106 – manslaughter – victim killed in brawl outside hotel – Crown permitted to cross-examine Crown witness under s.38 on basis evidence in court inconsistent with ROI – Crown sought to tender ROI
Held: application granted – under new s.106 prior inconsistent statement admissible and proof of truth of content
 
Col
[2013] NSWCCA 302
Evidence Act 1995 (NSW) s.103 – cause grievous bodily harm with intent – alleged to have set fire to victim – victim retracted initial statement to police – cross-examined under s.38 – initial statement to police and retraction both admitted as evidence at trial – whether material should not have been admitted
Held: Appeal dismissed – material admissible under s.103 – adduced by Crown in cross-examination and substantially affected victim’s credibility – admissible under s.106 as prior inconsistent statement – once admitted became evidence of facts contained in representation under s.60 – no prejudice under s.137 given clear and unambiguous content of statement – not rendered inadmissible under s.43(2)


Section 108: Re-establishing credibility

Singh-bal
(1997) 92 A Crim R 397 (NSW CCA)

Evidence Act 1995 (NSW) s.108 - supply prohibited drugs - police officers gave evidence appellant made admission - not recorded in notes or raised until trial - Basha inquiry held - after voir dire judge allowed evidence - appellant denied making admissions - also allowed evidence from third police officer that officers had told him about admission on day it had been made - defence accused police officers of fabricating evidence.
Held: s.108(3) evidence of third police officer was admissible to rebut allegation of fabrication.

F
NSW CCA 5.6.1997
Evidence Act 1995 (NSW) s.108 - sexual offences - complaint evidence
Held: evidence admissible – suggestion put directly to complainant that her evidence was fabricated - complainant also cross-examined about prior inconsistent statements

BD
(1997) 94 A Crim R 131; NSW CCA 28.7.1997
Evidence Act 1995 (NSW) s.108 - sexual assault - appellant sought to use evidence of complaint’s prior inconsistent statement to attack credit of complainant - Crown permitted to lead evidence of another complaint in examination in chief.
Held: (allowing appeal on other grounds) - evidence of complaint admissible under s.108(3) - may be led in examination in chief if clear it will be put to complainant in cross examination she has fabricated evidence - in this case evidence was also admissible under s.108(3)(a) because accused intended to use prior inconsistent statement

Vella
NSW CCA 1.8.1997
Evidence Act 1995 (NSW) s.108 - sexual offences - multiple complaint evidence allowed
Held: followed Foley - evidence allowed under s.108(3)(a) and 108(3)(b) provided satisfies requirements.

Graham v The Queen
(1998) 195 CLR 606; HCA 30.9.1998
Evidence Act 1995 (NSW) s.108 - sexual assault offences on daughter - complaint made six years after alleged offences - opportunity to complain earlier not taken - made in response to conversation with friends.
Held: (per Gaudron, Gummow & Hayne JJ) central issue to discretion under s.108(3) is whether evidence of complaint assists in assessing credibility of witness - in this case not clear that complaint made six years after alleged offence assists in deciding whether complainant fabricated allegation

Esposito
NSW CCA 20.11.1998
Evidence Act 1995 (NSW) s.108 - murder - companion to accused and witness to murder gave statement to police and independent witness
Held: s.108 not available to allow Crown to introduce potentially unreliable evidence (prior statement) to bolster the credibility of a witness

Rawlings
NSW CCA 18.12.1998
Evidence Act 1995 (NSW) s.108 - sexual assault - evidence of complaint not fresh.
Held: fabrication was suggested implicitly by position taken by accused at trial - put to complainant that events never occurred.

Gillard
(1999) 105 A Crim R 479; NSW CCA [21] 5.3.1999
Evidence Act 1995 (NSW) s.108(3)(b) - sexual offences on two sisters - admissibility of evidence of complaint - not admissible under s.66 because not fresh.
Held: complaint admissible as prior consistent statement under s.108(3)(b).

DJT
NSW CCA [22] 24.2.1999
Evidence Act 1995 (NSW) s.108(3)(b) - sexual assault - evidence of complaint nine years after incident.
Held: evidence admissible under s.108(3)(b) to rebut suggestion by accused that complainant fabricated allegation to obtain Victims Compensation - BD (1997) 94 A Crim R 131 applied.

Dwyer
NSW CCA [47] 25.3.1999
Evidence Act 1995 (NSW) s.108 - child sexual assault - 6y delay in complaint - complaint evidence admitted at trial.
Held: allowing appeal - evidence not fresh and therefore not admissible - complaint may have been admissible under s.108(3) but leave was neither obtained nor sought.

Cassar, Sleiman & Kalache (No.12)
NSWSC [352] (Sperling J) 15.4.1999 (confirmed on appeal Sleiman NSW CCA [231] 21.8.2003)
Evidence Act 1995 - s.108 - murder - evidence of Crown witness that he saw killing - cross-examined as to statements made to police that he had not seen anything - Crown sought to tender evidence of subsequent conversation with police officer where witness said he saw killing but was afraid for life.
Held: evidence admissible under s.108(3)(a) and (b) - need to consider s.192 leave - guidance from Gaudron, Gummow and Haynes JJ in Graham - a statement which is merely a repetition of witness’ evidence in court is of low probative value and unlikely to assist in resolving truthfulness or otherwise of witness’ statement - mere repetition does not make a story unlikely to be fabricated - this especially applies to ordinary statement made to police - in circumstances of this case statement probative and admissible.
Whitmore
(1999) 109 A Crim R 51; NSW CCA [247] 20.8.1999
Evidence Act 1995 (NSW) s.108 - child sexual assault – 3y delay in complaint.
Held: evidence not fresh - appeal allowed
Held: (per Greg James J at paras 38-39, Newman and Sperling JJ agreeing) “denial of events alleged without more does not necessarily suggest, expressly or implicitly, positively, reconstruction, fabrication or suggestion. Even if it did, on the issue of whether leave would be granted, the restraint from attacking credibility by going no further would be a most material matter mitigating against the grant of leave.”

D W H
NSW CCA [255] 24.8.1999
Evidence Act 1995 (NSW) s.108 - child sexual assault - evidence of complaint.
Held: trial miscarried procedurally - appeal allowed.
Held: (per Greg James J, Newman and Sperling JJ agreeing): plea of not guilty or taking issue with complainant’s assertions does not necessarily raise fabrication, reconstruction or suggestion for purposes of s108(3)(b) - it was not inevitable that leave to adduce complaint evidence would have been granted - even if fabrication, reconstruction or suggestion has been raised it would have been necessary to advert to relevant considerations under Act in considering discretion to grant leave – Whitmore applied

AJL
NSW CCA [104] 12.4.2000
Evidence Act 1995 (NSW) s.108 - sexual offences - Crown conceded 16m delay in making of complaint meant evidence not fresh - argued leave would have been granted pursuant to s.108.
Held: allowing appeal - not clear leave would have been granted pursuant to s.108 - even if denials in police interviews and cross-examination amounted to accusation that complainant had fabricated story Judge would need to consider whether and to what extent evidence of complaint would have assisted jury in resolving whether complainant had fabricated evidence and also whether evidence should be excluded as unfair - referred to Gaudron, Gummow & Hayne JJ in Graham.

Ali
NSW CCA [177] 17.5.2000
Evidence Act 1995 (NSW) s.108(3)(a) - sexual assault on step-daughter - evidence of complainant’s denials of offence to DOCS workers and police admitted - Crown granted leave to lead evidence from school counselor that complainant told her of rape - jury directed out of court statements could not be used as evidence of fact.
Held: evidence of school counselor admissible - where evidence of prior inconsistent statement admitted prior consistent statement made at same time, coupled with explanation for inconsistent statement, has potential to answer attack on witness’ credit in a rational way.

HJS
NSW CCA [205] 9.6.2000
Evidence Act 1995 (NSW) s.108 - evidence of complaint wrongly admitted under s.66 - whether evidence admissible under s.108.
Held: when deciding whether to grant leave to admit evidence Judge must consider circumstances of case - effect of credibility of witness on trial - effect of suggestion of fabrication - whether complaint made years after event would assist in assessing credibility.

Creed
NSW CCA [280] 7.8.2000
Evidence Act 1995 (NSW) s.108(3) - sexual offences - first complaint made many years after offences - evidence from school friend that complainant made complaint to her 13 years earlier - complainant did not recall conversation
Held: evidence admissible - just because complainant does not recall conversation does not mean it did not occur - statement sufficiently clear.

RTB
NSW CCA [104] 5.4.2002
Evidence Act 1995 (NSW) s.108 - sexual assault - complaint evidence
Held: no requirement that prior consistent statement be spontaneous – must also consider s.192 factors

TAB
NSW CCA [274] 16.7.2002
Evidence Act 1995 (NSW) s.108 - sexual assault by father
Held: no error in admitting evidence of complaints as evidence of prior consistent statements – appeal dismissed

DBG
(2002) 133 A Crim R 227; NSW CCA [328] 10.9.2002
Evidence Act 1995 (NSW) s.108 - sexual assault - complaint evidence
Held: discussion as to distinction between evidence of complainant admitted under s.66 and complainant evidence admitted under s.108 – important distinction that should be made clear and maintained at all times, particularly when addressing jury

Corbett
NSW CCA [402] 1.10.2002 (supplementary judgment)
Evidence Act 1995 (NSW) s.108 - sexual assault - complaint evidence
Held: no error in admitting complaint evidence – both limbs satisfied

Houssein
NSW CCA [74] 28.3.2003
Evidence Act 1995 (NSW) s.108 – malicious wounding – eye witness cross examined as to faulty memory due to ADD – Crown given leave to tender statement to police
Held: no error

Ngo
(2003) 57 NSWLR 55; NSW CCA [82] 3.4.2003
Evidence Act 1995 (NSW) s.108(3)(b) – murder – technical error in relation to one witness’ evidence had not, in context of the trial, led to miscarriage of justice - no substantive arguments were advanced at trial for admissibility of C's evidence under s 108(3).
Held: appeal dismissed

Leung
(2003) 144 A Crim R 441; NSW CCA [51] 1.5.2003
Evidence Act 1995 (NSW) s.108 – drug offence – evidence of flight from police led by Crown - appeal against refusal to allow wife to give evidence that appellant told her he had fled from police because afraid they would say he was he boss of the criminal enterprise
Held: pre-requisites for admission found in s.108(3)(a) and (b) – once these provisions met evidence prima facie admissible – questions of accuracy, importance, fairness, reliability etc all questions to be subsequently considered under s.135, 192,etc – although judge erred in not finding evidence prima facie admissible no miscarriage in circumstances of case

Sleiman
NSW CCA [231] 21.8.2003
Evidence Act 1995 (NSW) s.108(3) - murder - evidence of recorded conversation of witness by police officer regarding an eyewitness account of attack and delay in coming forward to authorities (for fear of reprisal) was admissible as prior consistent statement (by witness) to rebut attack on credit and attack assertions of fabrication
Held: appeal dismissed

Selsby
NSW CCA [381] 9.11.2004
Evidence Act 1995 (NSW) s.108(3)(a) – Sexual offences against girlfriend’s daughter – complainant gave evidence she ran away from mother and stayed with appellant and several years later wrote appellant note of thanks – conduct occurred subsequent to alleged offences – put to complainant in cross-examination that conduct showed offences did not occur – Crown permitted to lead evidence of complaint made to school friend
Held: conduct of complainant in going to stay with appellant and writing letter of thanks could both be considered assertion or representation that appellant had not committed offences – cross-examination amounted to attack on credibility of complainant – complaint to friend relevant and admissible to rebut attack on credibility – fact that evidence of prior inconsistent representation originally raised in evidence by Crown does not prevent leave being granted where formed basis for attack by defendant in cross-examination
 
MDB
NSW CCA [354] 7.11.2005
Evidence Act 1995 (NSW) s.108(3)(b) – Sexual offences against friend of son on camping trip – complaint made to mother 6 months later when faced with second camping trip
Held: no error in admitting evidence – evidence important where challenge to credibility of complainant and evidence provided some explanation for why complaint made at time it was made –
[21] Reference was also made to the decision of Howie J in DBG [2002] NSWCCA 328; 133 A Crim R 227, and, in particular, to his Honour’s conclusion that, where s108(3)(b) is invoked in order to have admitted evidence of a prior consistent statement for the purpose of rebutting an attack upon a witness’ general credibility, generally speaking the timing of the making of the statement is more important than the circumstance in which the statement was made. That may be so as a general principle, and I did not and do not dissent from the proposition as stated by Howie J. However, it was not expressed to be universal or absolute.
Circumstances of the making of the prior statement can be as relevant as timing of statement in determining admissibility
 
Mearns
NSW CCA [396] 8.12.2005
Evidence Act 1995 (NSW) s.108(3)(b) – Sexual offences against step daughter – evidence of poem written by complainant containing reference to sexual assault – not clear when poem written
Held: no error in admitting evidence – subsequent cross-examination justified admission of poem in response to allegation of fabrication
 
Sood (No.2)
[2006] NSWSC 732, Simpson J 20.7.2006
Evidence Act 1995 (NSW) s.108 – abortion offences – alleged to have given vaginal medication to patient in improper circumstances – subsequent death of baby born at 23 weeks – nurse at office called by Crown – previously gave evidence of presence of teenage boy with victim / patient – at trial claimed mistaken as to presence of boy – whether affidavit sworn two months after incident containing version consistent with trial evidence admissible
Held: evidence admissible – on cross-examination alleged witness with reconstructing or fabricating evidence – important crown witness – affidavit important to credibility of witness
 
KNP
NSW CCA [213] 20.7.2006
Evidence Act 1995 (NSW) s.108(3)(a) – charged with sexual offences on nephew – evidence of complaint admitted after Crown raised evidence that complainant accompanied Uncle alone in car after offences commenced
Held: evidence admissible as evidence of prior consistent statement – contemporaneous – could explain possible inconsistent conduct of travelling with Uncle alone – prior inconsistent representation can be inferred from conduct – s.108(3)(a) still relevant although evidence of prior inconsistent statement first raised by Crown
 
Abdulkader and Hohaia [No.1]
(2006) NSWSC 198, Kirby J, 29.3.2006
Evidence Act 1995 (NSW) s.108(3)(b) – murder – D put forward by accused as alibi witness – claimed to have run into accused late at night down the street at time of offence – made statement to solicitor 7 months later
Held: statement to solicitor not admissible – although not put directly to witness Crown will suggest mistake caused by reconstruction or suggestion – this satisfies s.108(3)(b) – but statement made 7 months later, simply repeating what witness said in evidence, cannot assist in determining whether mistake made - Referred to Graham and DBG.
 
Pavitt
[2007] NSW CCA 88, 2.4.2007
Evidence Act 1995 (NSW) – s.108(3) – sexual assault – offender sexually assaulted male school friend of younger sister twenty years ago – complainant made numerous complaints to school friends and family – admissibility of prior consistent statements – appellant alleged complainant unreliable because of criminal record, mental illness and drugs
Held: appeal dismissed – allegations as to unreliability sufficient to raise s.108(3)
 
Jones (No.5)
[2007] NSWSC 1155, Buddin J, 10.4.2007
Evidence Act 1995 (NSW) s.55, 108(3)(b) – murder – fight between two families in caravan park – admissibility of statement to police made by 16 year old female eye-witness – related to deceased – cross-examination suggested colluded with family before making statement – Crown argued statement admissible for jury to appreciate complexity of statement and difficulty of fabrication
Held: statement excluded – evidence raised serious questions about whether statement accurately reflected what witness had said to police – no probative value – not admissible under s.55 – refused to admit under s.108 – risk that jury may adopt written statement and ignore problems raised by oral evidence
 
Abdul-Kader
[2007] NSWCCA 329, 29.11.2007
Evidence Act 1995 (NSW) s.55, 108(3)(b) – Murder & robbery – alibi by RD - appellant sought to tender a previous consistent statement made by RD to a solicitor. made eight months after the event - relied on s 108(3)(b) – RD’s prior consistent statement rejected by judge. question of admissibility of prior consistent statement to support or establish credit – trial judge held prior consistent statement would not help in determining whether evidence arrived at by reconstruction or suggestion – whether judge erred in refusing tender of statement.
Held: (1) The exercise of the discretion under s 108 of the Evidence Act depends upon the effect of the evidence on the witness’ credibility: [42] Graham v The Queen [1998] HCA 61; (1998) 195 CLR 606 (followed); R v Ali [2000] NSWCCA 177; R v MDB [2005] NSWCCA 354 (considered); R v DBG [2002] NSWCCA 328; (2002) 133 A Crim R 227 (cited)
(2) Nothing in RD’s prior consistent statement that explained how it was that he remembered the date on which he said he saw the appellant. The judge’s assessment was correct that the jury would not have received any assistance from the statement in determining whether RD had arrived at the date by a process of reconstruction or suggestion: [50](3) The judge was alive to the likelihood of the Crown’s general challenge to the truthfulness of RD. While the judge confined his remarks to the reliability of the evidence, he did not err by not addressing the question whether the evidence was fabricated. Even if the judge should have addressed that question, the answer would have been the same: [63]
 
Langbein
NSW CCA [2008] NSWCCA 38
Evidence Act 1995 (NSW) s66, 108 — persistent sexual abuse – whether TJ erred in admitting complaint evidence under s66.
Held: Complaint evidence should not have been admitted for hearsay purpose – period of delay (66 days) too long to "maintain freshness" in V’s mind: at [85] —Graham (1998) 195 CLR 606; Papakosmas (1999) CLR 297 discussed - (cf Skipworth [2006] NSWCCA 37, where delay of 66 days did not prevent evidence being admitted under s66.) - no miscarriage of justice occasioned since evidence admissible under s108 to re-establish credibility – error not significant as defence suggested V fabricated evidence - evidence admissible under s.108: at [90].
 
Nikolaidis
[2008] NSWCCA 323, 17.12.2008

Evidence Act 1995 (NSW) 108(3) – make false instrument – Crown alleged solicitor had secretary type and backdate letter dealing with costs – in legal dispute with former client – secretary discussed concerns about backdating a letter with another partner two years later – whether evidence should not have been admitted

Held: no error in allowing evidence – cross-examination of secretary by appellant suggested evidence fabricated

 
RLP
[2009] NSW CCA 93, 8.4.2009
Evidence Act 1995 (NSW) s.108(3) - sexual assault child aged 14 – complaint made 3 months after offence
Held: appeal allowed – distinction between s.66(2) and s.108(3) considered – failure to consider admissibility under s.108 – wrongly admitted under s.66(2)
 
Abdallah (No.4)
[2014] NSWSC 286 Campbell J
Evidence Act 1995 (NSW) s.108(3)(b) – murder – eye-witness to shooting – gave account to 000 operator, police officer attending scene and statement at police station on day of shooting – one month later taken on walk through and gave evidence at committal – put to witness in cross-examination that evidence of shooting innocently reconstructed due to shock - no suggestion of fabrication – focus on inconsistencies – by conclusion of cross-examination witness appeared unsure whether one or two shootings – relevant to defence claim of self defence - application by Crown to introduce prior statements
Held: excluded evidence of walk through and committal – unfair to accused given unsatisfactory nature of walk through and time lapse between events and committal – allowed evidence of contemporaneous statements – fresh in mind of witness
 
 
 

108A Admissibility of evidence of credibility of person who has made a previous representation

Hawi (No.16)

[2011] NSWSC 1662 10.8.2011

claim of self defence - application by Crown to introduce prior statements

Evidence Act 1995 (NSW) s.108A – murder, riot and affray – violent confrontation between two motorcycle gangs at airport resulting in death – evidence led from police officer of comments made by accused at time of arrest to the effect he had not done anything – defence sought to led small portion of taped conversation between accused and another person suggesting self defence – conversation taped pursuant to unrelated telephone intercept – sought to use conversation as statement consistent with comments at arrest
Held: application refused – question is whether taped conversation could substantially affect assessment of credibility of accused – examination of context of taped conversation indicated not a serious and genuine assertion but light hearted attitude to incident – would not substantially affect assessment of credibility and in fact could be adverse to accused

 

 

108C Exception: evidence of persons with specialised knowledge

 

MA

[2013] VSCA 20

Evidence Act 1995 (VIC) s.108C –sexual offences against daughter - Crown called psychiatrist to give expert evidence with respect to behavioural framework within which evidence of complainant’s reactions to alleged abuse should be assessed and understood - in particular, evidence that:

(a) failure of complainant to cry out during the sexual assaults when other members of family nearby was not unusual behavioural reaction

(b) failure of complainant’s mother to accept truth of complaint made to her by complainant not an unusual behavioural reaction and could be regarded as relevant to complainant’s behaviour thereafter

(c) that complainant maintained ongoing relationship with father for many years after alleged abuse not unusual behavioural reaction

Held: appeal dismissed - expert evidence as to patterns of victims’ behaviour relevant to rebut defence case as to counter-intuitive behaviour on complainant’s behalf - evidence bore upon complainant’s credibility as contemplated by s 55 in specific manner contemplated by s 108C(2) - capable of substantially affecting assessment of complainant’s credibility as required by s 108C(1): at [34] - evidence relating to parental response and, in particular, maternal response to complaints by a child of sexual abuse was sufficiently interrelated with and directly relevant to evidence of potential responses by victim of sexual abuse as to fall within s 108C

 


Part 3.8: Character

Section 110: Evidence About Character of Accused Persons

Milat
NSWSC (Hunt CJ at CL) 20.3.1996

Evidence Act 1995 (NSW) s.110 - murder - Crown sought to lead evidence from two hitchhikers that accused had previously picked them up.
Held: evidence not admissible unless accused claimed he did not pick up hitchhikers or backpackers

Gabriel v The Queen
Fed Ct (Full) Canberra 25.6.1997
Evidence Act 1995 (Cth) s.110 - street fight resulted in stabbing of victim - in cross-examination accused said “I don’t do around attacking people” - Crown asked accused to affirm or deny he was sort of person who would need a reason to attack people - Crown given leave to introduce evidence about prior convictions - criminal record included violence but no stabbing.
Held: Crown question unfair - denial of allegation of Crown does not raise character - evidence inadmissible - do not raise character by asserting not sort of person to stab people or by giving evidence of trade and interests - even if raised character cross-examination should have been restricted to acts of violence that involved a stabbing instrument - provisions under Act allowing bad character evidence are very restrictive.

Eastman v The Queen
Fed Ct (Full) Canberra 25.6.1997
Evidence Act 1995 (Cth) s.110 - murder - evidence of bad character led by Crown in response to evidence of good character raised by accused in cross-examination and own evidence - whether evidence of bad character can only be led to rebut evidence of good character - whether evidence of bad character can be used on issue of guilt.
Held: s.110 allows evidence of good character to be used on issue of guilt - evidence of bad character can probably be used in same way although do not need to decide on this appeal.

PKS
NSW CCA 1.10.1998
Evidence Act 1995 (NSW) s 110(3) - sexual assault offences - accused sought good character direction although had spent conviction for dishonesty - Judge refused
Held: Judge’s refusal appropriate otherwise jury could wrongly consider accused had unblemished character.

Zurita
NSW CCA [22] 13.2.2002
Evidence Act 1995 (NSW) s 110 - refusal by trial judge to allow accused to raise character in part - no reference by trial judge to s.110 or PKS - whether miscarriage of justice
Held: Appeal allowed

Chapman
NSW CCA [105] 12.4.2002
Evidence Act 1995 (NSW) s 110 - supply drugs - defence witness not permitted to give evidence she did not believe appellant was kind of person who supplied drugs - whether miscarriage of justice where no evidence given of appellant’s lack of criminal history
Held: appeal allowed

Fuller
NSW CCA [121] 17.4.2002.
Evidence Act 1995 (NSW) s 110 - child sexual assault - appellant not permitted to raise good character due to other charges pending for which Crown subsequently offered no evidence - whether appellant deprived of raising good character.
Held: open to appellant to assert good character “in a particular respect”, namely that he had no convictions - appeal dismissed.

TAB
NSW CCA [274] 16.7.2002
Evidence Act 1995 (NSW) s.110 - sexual assault by father
Held: no error in ruling that if appellant raised character he could be cross examined in relation to other allegations

Bartle & Ors
NSW CCA [329] 3.12.2003.
Evidence Act 1995 (NSW) s 110 - importation – whether TJ correct in holding that in giving answer “Because I never been involved in any importation, been selling any drugs”, D intended to raise good character – where D being cross-examined about national origin (Columbian) and affiliations – where bad character consequently admitted
Held: TJ erred in holding D had raised good character – evidence of bad character wrongly admitted - Gabriel v R (1997) 75 FCR 279 applied - issue raised by s110 to be addressed in context of trial - Crown who cross-examines by suggesting to A he had opportunity and tendency to commit type of crime charged can hardly be surprised if A chooses to deny emphatically -when Crown comes to invoke s110(2) or (3) it will generally be harder for Crown to persuade court that A’s answer to a later question involved A “adducing” good character if preliminary context places A in position where he is concerned to address perceived guilt by opportunity or tendency by making an emphatic denial of guilt - proviso applied - appeal dismissed.

Skaf
NSW CCA [74] 7.4.2004
Evidence Act 1999 (NSW) s.110, 112 – multiple sexual assault offences – S gave evidence - in cross-examination S stated “I've never been charged with anything. They're the first charges I've ever had. Other than a driving offence". – Crown given leave to cross-examine then adduce evidence of prior convictions for dishonesty and malicious damage to property offences – fresh evidence on appeal indicates matters dealt with in absence of S but after he had been taken to police station – whether evidence of good character adduced by S – whether Crown should not have been granted leave
Held: appeal dismissed – no error in granting leave to cross-examine as to prior convictions – comment by S unresponsive and deliberately raised good character – TJ found honesty of S crucial issue at trial – tests under s.192 and s.137 properly applied

El-Kheir
NSW CCA [461] 20.12.2004
Evidence Act 1995 (NSW) s.110, 112 – Attempt possess heroin – appellant present at time of controlled delivery of drugs to home of cousin – claimed unaware and uninvolved in drugs – raised good character in examination in chief – produced social security cards to indicate receiving pension as carer for wife – address on cards different to appellant’s home address – admitted in examination by counsel that he gave false address to receive more money – further questioning attempted to show appellant prepared to tell truth even when disadvantageous – Crown cross-examined on pension cards without leave – whether Crown required leave to cross-examine evidence of bad character raised by accused – whether leave should have been granted – whether miscarriage of justice
Held: ground of appeal dismissed - appeal allowed on inadequacy of directions on use to be made of evidence of bad character - Crown should have obtained leave under s.112 before cross-examining appellant – evidence “adduced” under s.110(2) only when deliberate and conscious decision made to raise matters for purpose of good character – issue of social security fraud initially raised by accident but subsequent treatment of evidence by appellant demonstrated deliberate decision to use evidence for purpose of good character, therefore evidence of good character adduced – Crown required leave as intention of cross-examination was to rebut evidence of good character – failure to grant leave caused no miscarriage – trial judge would have been unreasonable to refuse leave where honesty and good character of accused such an important element of defence
 
PGM
NSW CCA [310] 6.10.2006
Evidence Act 1999 (NSW) s.110, 112 – multiple sexual assault offences on child – complainant gave evidence she saw pornographic image on applicant’s computer – police found 1,500 images on computer – Crown permitted to lead evidence of one image being found – cross-examined accused as to whether he saw image and why he did not look at it again – TJ ruled response to question raised character – allowed Crown to lead evidence that other images found on computer
Held: appeal allowed – TJ erred in finding accused deliberately raised good character – raising of good character requires conscious decision on part of accused – in any event admission of evidence prejudicial and unfair to accused
 
Ceniccola
[2010] NSWSC 1554, Harrison J, 3.12.2010
Evidence Act s.97, 110 – murder – accused alleged to have shot neighbour in dispute over fence – whether statement from another neighbour admissible – statement raised good character and tendency to resolve fencing matters with neighbours in proper manner
Held: statement admissible – hearsay, opinion and tendency evidence can be used as evidence of good character under s.110 – evidence must be relevant to good character – good character under Act same as under common law – Attwood (1960) 102 CLR 353 at 359
"The expression 'good character' has of course a known significance in relation to evidence upon criminal trials; it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged… As Cockburn CJ said: "The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried'."
 
Abdohalli (No 8)
[2013] NSWSC 481, RA Hulme J, 19.3.2013
Evidence Act admissibility - character evidence – affray, riot by detainee at Villawood detention centre - evidence of refugee status as relevant to character - passing security clearance as relevant to character.
Held: Evidence admissible.
 

Rogerson; McNamara (No 12)

[2015] NSWSC 1099 (Bellew J)

Evidence Act 1995 (NSW) ss. 110, 192  - character – advance ruling - murder - A (McNamara) opened to jury raising good character – Crown sought leave to cross- examine A and lead evidence of bad character in reply – advance ruling sought – Whether evidence would unduly add to length of trial – Whether evidence important – whether unfair to co- A (Rogerson) – co-A opened to jury raising good character  - Crown sought leave to cross-examine co-A and lead evidence of bad character in reply -  co-A made application for leave to cross-examine on same evidence – application made independently of the application for leave made by the Crown – Whether evidence relevant and admissible.

Held: Advance ruling made granting the Crown's application for leave in relation to A McNamara. Advance ruling made refusing the application for leave in relation to co-A Rogerson.

Discussion of authorities.

Qaumi (No 61)

[2016] NSWSC 1192 (Hamill J)

Evidence Act – ss.110(2), (3), 135, 137 - admissibility – in evidence in chief Counsel asked accused if it was first time in custody – accused answered yes – co-offender sought to led evidence that accused had record for assault – also sought to lead CCTV footage of accused attacking co-offender in dock

Held:  application to admit evidence refused – both s.110(2) and (3) had been engaged – good character raised in evidence - mistake by counsel – probative value of evidence not great in rebutting limited evidence led as to first time in custody - showing of CCTV footage prejudicial to other accused and could mislead jury – exploration of incident would waste time – probative value outweighed by danger of unfair prejudice

 

 


 

Section 112: Leave required to cross examine about character of accused or co-accused

Eastman v The Queen

Fed Ct (Full) Canberra 25.6.1997
Evidence Act 1995 (Cth) s.112 - murder - accused raised evidence of good character in cross-examination and own evidence - evidence included testimony from prostitute that on night of killing accused had appeared gentle and she was comfortable in his presence, no prior convictions, was of high standing in public service and was not a violent person - Judge allowed Crown to lead evidence of bad character - evidence included disputes with Commissioner for Superannuation, assault, threats of violence against people including victim and acquisition and attempted acquisition of firearms.
Held: no error in allowing evidence - evidence of good character may be raised although accused adducing evidence for another purpose - good character raised if evidence intended to suggest by reason of general disposition accused not the sort of person to commit offences - Judge correctly considered leave under s.192.

PKS
NSW CCA 1.10.1998
Evidence Act 1995 (NSW) s 112: sexual assault offences - accused sought good character direction although had spent conviction for dishonesty - Judge refused
Held: Counsel entitled to ruling from judge as to what matters Crown will be permitted to cross-examine on, but responsibility of counsel to “articulate for the consideration of the trial Judge any coherent application for a ruling as to what would, and what would not, be permitted in the event of the calling, in a form clearly delineated, of some evidence as to the good character of the accused.” [p.12]

Robinson
(2000) 111 A Crim R 388
Evidence Act 1995 (NSW) s.112
Held: Counsel entitled to require Crown to reveal what matters would be led in response to good character - “If defence counsel had put forward a properly formulated proposal to raise good character in general or in the particular respect … the trial judge would have been obliged to indicate what evidence if any the Crown might be permitted to adduce.” [para 42 per Barr J]

T.K.W.J.
NSW CCA [246] 13.9.2000
Evidence Act 1995 (NSW) s.112
Held: Counsel entitled to ruling from Judge in advance as to what material Crown would be permitted to raise in cross examination as to character of accused - judge would then be required to consider whether leave should be granted under s.112, and would need to consider ss. 135, 136 and 137. [para 43-44 per James J]

R v OGD [No. 2]
(2000) 50 NSWLR 433; NSW CCA [404] 13.10.2000
Evidence Act 1995 (NSW) s.112 - sexual offences on nephew over 5 years - evidence led from three other boys that appellant had also sexually abused them - whether evidence should have been excluded on basis of possibility of concoction.
Held: dismissing appeal - exclusion of evidence no longer governed only by test for concoction in Hoch - common law only applicable where consistent with Evidence Act provisions - need to consider possibility of concoction under s.112 but different to issues to those considered under 101(2), s.135 and s.137 discretions - possibility of concoction does not automatically exclude evidence otherwise accused may be permitted to make great sweeping claims as to good conduct.

Stanoevski v The Queen
(2001) 202 CLR 115; HCA 8.2.2001
Evidence Act 1995 (NSW) s.112 - solicitor convicted of conspiracy to defraud - in response to appellant’s evidence of good character Crown permitted to cross examine on report provided to Law Society as to allegation appellant had forged client’s signature in a prior, unrelated, Family Court matter - cross-examination took up considerable amount of time.
Held: appeal allowed - Judge erred in granting leave to cross examine without considering s.192(2) of Act - Gaudron, Kirby and Callinan JJ suggested cross examination unfairly prejudicial and probably should not have been allowed.

Fuller
NSW CCA [121] 17.4.2002
Evidence Act 1995 (NSW) s.112 - unlawful carnal knowledge with person (under 16 years) - sequence of trials led accused not to raise character at trial - leave sought to add ground of appeal
Held: absence of good character evidence at trial did not amount to miscarriage of justice - defence would have required leave to raise issue of appellant's character at trial, before he could be cross examined on character, particularly in respect of sexual assault allegations arising in second trial

Soto-Sanchez
(2002) 129 A Crim R 279; NSW CCA [160] 10.5.2002
Evidence Act 1995 (NSW) s.112 - possess drugs - appellant cross-examined without leave that he shared premises with prostitutes and had not paid tax - appellant’s credibility central to jury’s deliberations - TJ failed to direct jury that fact appellant had no prior convictions was relevant to credibility - whether miscarriage of justice
Held: together with other ground of appeal, may have amounted to miscarriage of justice - appeal allowed on unrelated ground

TKWJ
(2002) 212 CLR 124; HCA [46] 10.10.2002
Evidence Act 1995 (NSW) s.112
Held: Gaudron J (Hayne and Callinan JJ agreeing, Gleeson CJ and McHugh J not deciding) there is no power under Evidence Act or under implied power of District Court for judge to give advance ruling as to whether Crown will be permitted to lead adverse evidence of character of accused

Skaf
NSW CCA [74] 7.4.2004
Evidence Act 1999 (NSW) s.110, 112 – multiple sexual assault offences - in cross-examination S stated “I've never been charged with anything. They're the first charges I've ever had. Other than a driving offence". – Crown given leave to cross-examine then adduce evidence of prior convictions for dishonesty and malicious damage to property offences – fresh evidence on appeal indicates matters dealt with in absence of S but after he had been taken to police station – whether evidence of good character adduced by S – whether Crown should not have been granted leave
Held: appeal dismissed – no error in granting leave to cross-examine as to prior convictions – comment by S unresponsive and deliberately raised good character – TJ found honesty of S crucial issue at trial – tests under s.192 and s.137 properly applied

El-Kheir
NSW CCA [461] 20.12.2004
Evidence Act 1995 (NSW) s.110, 112 – Attempt possess heroin – appellant present at time of controlled delivery of drugs to home of cousin – claimed unaware and uninvolved in drugs – raised good character in examination in chief – produced social security cards to indicate receiving pension as carer for wife – address on cards different to appellant’s home address – admitted in examination by counsel that he gave false address to receive more money – further questioning attempted to show appellant prepared to tell truth even when disadvantageous – Crown cross-examined on pension cards without leave – whether Crown required leave to cross-examine evidence of bad character raised by accused – whether leave should have been granted – whether miscarriage of justice
Held: ground of appeal dismissed - appeal allowed on inadequacy of directions on use to be made of evidence of bad character - Crown should have obtained leave under s.112 before cross-examining appellant – evidence “adduced” under s.110(2) only when deliberate and conscious decision made to raise matters for purpose of good character – issue of social security fraud initially raised by accident but subsequent treatment of evidence by appellant demonstrated deliberate decision to use evidence for purpose of good character, therefore evidence of good character adduced – Crown required leave as intention of cross-examination was to rebut evidence of good character – failure to grant leave caused no miscarriage – trial judge would have been unreasonable to refuse leave where honesty and good character of accused such an important element of defence
 
PGM
NSW CCA [310] 6.10.2006
Evidence Act 1999 (NSW) s.110, 112 – multiple sexual assault offences on child – complainant gave evidence she saw pornographic image on applicant’s computer – police found 1,500 images on computer – Crown permitted to lead evidence of one image being found – cross-examined accused as to whether he saw image and why he did not look at it again – TJ ruled response to question raised character – allowed Crown to lead evidence that other images found on computer
Held: appeal allowed – TJ erred in finding accused deliberately raised good character – raising of good character requires conscious decision on part of accused – in any event admission of evidence prejudicial and unfair to accused