Often in a criminal trial, an attempt will be made to bring up evidence of someone’s past convictions, their good or bad character or their credibility as a witness.
The rule concerning credibility is provided for in s102 of the Evidence Act (“the act”) which provides that ‘credibility evidence about a witness is not admissible’. S103 of the act creates an exception to the credibility rule where the evidence is adduced in cross-examination and the evidence “could substantially affect the assessment of the credibility of the witness”.
At times this rule is strictly enforced. In the case of State Rail Authority of NSW v Brown (2006) 66 NSWLR 540 a train passenger was injured when his train collided with another train. At the hearing he argued that, amongst many other injuries sustained in the accident, he sustained damage to his teeth. However, the cross examination sought to ask questions about his previous dental injuries and evidence of prior inconsistent statements given to dentists in order to damage his credibility. The NSW Court of Appeal, applying the rule under s102, held that such questioning was not allowed.
Whilst credibility broadly refers to the likelihood a person is ‘credible’, character …