Character and Credibility of a Witness

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 evidence, on the other hand, deals with the moral constitution of a person. The rule concerning character evidence is supplied in s110 of the Evidence Act which provides that a person on trial in criminal proceedings can provide evidence that they are of good character.

However, this rule is to be read in conjunction with the ‘tendency’ rule in s97 which states that evidence of a person's past character is not admissible to prove that the person had a ‘tendency to act in a certain way’ unless:

The person seeking to rely on the evidence has given reasonable notice to the other side about producing it;

The proposed evidence has significant probative value; and

The value of the evidence substantially outweighs any unfair prejudice that may be caused to the defendant by its admission.

Therefore, because of this section, a person on trial may seek to put on character evidence to demonstrate that they would be unlikely to commit the offence because of their character and credibility.

At the same time, once character evidence is relied on by a person on trial then the prosecution equally has the right to produce evidence which demonstrated that the person is not a person of good character. For that reason, relying on character evidence can be a double edged sword.

Can the prosecution rely on evidence of a person's previous conviction to demonstrate that they are more likely to have committed a particular offence? As a general rule, a Jury or a Judge is not normally told about an accused person’s previous convictions because that may unfairly influence the opinion of the Jury.

Put another way, evidence that a person has a terrible history of driving offences is not relevant to the question of whether they assaulted another person. For that reason, evidence of previous convictions are rarely relied upon.

 However, if the requirements of s97 above are complied with then a person’s previous convictions may be admissible to prove the current offence they are charged with. This issue was explored in R v Zurita. In that case, Zurita was convicted of aggravated sexual assault. The NSW Court of Criminal Appeal held that evidence of Zurita’s previous convictions for stealing where irrelevant to the issue of whether he committed sexual assault.

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