21. Credibility Evidence — ss 101A–108C (Vic)¶
Scope and currency
Reference sheet · Evidence Act 2008 (Vic) Part 3.7 · the credibility rule, its exceptions & the accused's shield
The rule and the map. s 102 shuts out evidence relevant only to a witness's credibility (defined in s 101A). Admissibility then runs through an exception: cross-examination (s 103), the accused's protections (s 104), rebutting denials (s 106), re-establishing credibility (s 108), non-witnesses (ss 108A–108B), and experts (s 108C) — all still subject to the s 135–137 discretions. First ask: is the evidence relevant to anything but credibility? If so, Part 3.7 does not apply.
Start here — what is credibility evidence?¶
The definition (s 101A): evidence relevant to a witness's or person's credibility that is (a) relevant only because it affects credibility; or (b) relevant to credibility and for another purpose for which it is barred by Parts 3.2–3.6 (hearsay, opinion, tendency, etc.). "Person" also covers a non-witness maker of a previous representation.
Credibility = truthfulness + reliability: it covers veracity and the reliability of perception and recollection; there is no distinction between credibility and reliability (Dupas v R (2012) 40 VR 182). It may undermine or bolster.
The basic rule (s 102): credibility evidence about a witness is not admissible. So the prosecution generally cannot lead a prior consistent statement in chief, ask "you're an honest person?", prove a witness's intelligence/memory, or lead a motive to lie — unless an exception (or leave to cross-examine one's own witness, s 38) applies.
'Only to credibility' is the trigger
the mere fact that evidence affects credibility does not make it credibility evidence — if it is relevant and admissible for another purpose, s 101A is not engaged and Part 3.7 does not apply. In joint trials, apply it consistently with separate consideration (Destanovic & Tangaloa v R (2015) 49 VR 276).
The test¶
| Provision | What it requires |
|---|---|
| s 102 | The credibility rule — evidence relevant only to credibility is inadmissible. |
| s 103(1) | Exception: the rule does not apply to evidence adduced in cross-examination that could substantially affect the assessment of the witness's credibility. |
| The standard | A "real bearing, or a real and persuasive significance, on the overall credibility" of the witness — not any matter that merely touches credit. |
| s 103(2)(a) | Have regard to whether the evidence tends to prove the witness knowingly or recklessly made a false representation while under an obligation to tell the truth. |
| s 103(2)(b) | Have regard to the period that has elapsed since the acts or events concerned — the decisive factor in the "incapable" cases below. |
The decision sequence¶
GATE 1 Is it credibility evidence at all? (s 101A)
Is the evidence relevant to anything but the witness's credibility? → Only to credibility (or dual-relevant but barred): it is credibility evidence — s 102 excludes it unless an exception applies → work the gates. → Relevant/admissible for another purpose: s 101A is not engaged; Part 3.7 does not apply (still subject to ss 135–137).
GATE 2 · s 103 Cross-examination — substantial?
Could the evidence substantially affect the assessment of the witness's credibility? The credibility rule does not apply to cross-examination if the evidence could substantially affect credibility. Uniform Evidence Manual: “real bearing, or a real and persuasive significance, on the overall credibility of the witness". This unlocks the staples — capacity to observe/recall, bias/motive to lie, prior inconsistent statements, occasions of lying under an obligation to tell the truth, and prior convictions. "Substantially" is a real limit (R v RPS): not everything on credit gets in — but counsel may "start a little distance from the point and work up to it". For the assessment, assume the witness answers most favourably to the questioner (R v Beattie). s 103(2) factors: to guide the court in assessing whether the proposed cross-examination meets the threshold of "substantial affect credibility", s 103(2) mandates that the court must have regard to two specific (though non-exhaustive) factors: False representations under an obligation of truth: The court must consider whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when they were under an obligation to tell the truth (s 103(2)(a)). If the evidence establishes that the witness has previously lied when legally or morally bound to be truthful (e.g., in a statutory declaration, sworn testimony, or formal police statement), it is highly likely to satisfy the test for admissibility. The effluxion of time: The court must consider the period that has elapsed since the acts or events to which the evidence relates occurred (s 103(2)(b)). By way of forensic example, the Court of Criminal Appeal in Montgomery v R held that cross-examining a witness about prior convictions that occurred over 50 years ago should never have been permitted, as the extreme lapse in time meant the evidence was incapable of possessing substantial probative value as to the witness's current credibility. Unlocking the "Staples" of Credit Once the s 103 threshold is cleared, it permits defence or prosecution counsel to deploy the fundamental tools of cross-examination. These include exploring a witness's bias or motive to be untruthful, their capacity to observe and recall events (which directly attacks reliability as a subset of credibility), and cross-examining the witness on prior inconsistent statements. Questioning regarding prior inconsistent statements is specifically facilitated and procedurally governed by s 43 of the Act, which allows such cross-examination whether or not complete particulars of the statement have been provided to the witness. → Prior convictions: dishonesty offences clearly qualify; so may any offence showing disregard for the law (drug supply — R v Lumsden; robbery — Dodge v Snell) — but not if too remote (50 years — Montgomery v The Queen). Prove via a s 178 certificate; s 91 bars using the earlier decision/findings to prove a fact.
Capable of substantially affecting credibility?¶
| Case | The evidence | Capable? | Why |
|---|---|---|---|
| Montgomery v R [2013] NSWCCA 73 | Cross-examination of a defence witness about his prior criminal convictions over 50 years ago. | NO | The convictions were over 50 years old. Given that remoteness (s 103(2)(b)), they could not have substantial probative value as to the witness's current credibility — the cross-examination should never have occurred. |
| Al-Salmani v The Queen NSWCCA 83 | Cross-examination of an expert witness about having been fired from a job about 20 years earlier, without an advance ruling. | NO | Remote professional history lacked the real and persuasive significance required to substantially affect the assessment of the witness's credibility today. Improper to embark on it without first seeking a ruling. |
| Fletcher v The Queen [2015] VSCA 146 | A passage in the police statement of a non-attending witness (Li) explaining she was scared of her boyfriend, that he was controlling, and that she knew he would turn on her and probably shoot her too — offered to explain why she did nothing after seeing him shoot someone. | YES | Tested under the s 108A equivalent (same "could substantially affect" language, for a non-attending representor). It supplied a credible answer to seemingly inexplicable behaviour — the nature of the relationship and her state of mind toward him could substantially affect the jury's assessment of her credibility. |
| Adam v The Queen [2001] HCA 57; (2001) 207 CLR 96 | Cross-examination of a witness on prior inconsistent statements made to police about a stabbing. | YES (Gaudron J, dicta) | Majority (Gleeson CJ, McHugh, Kirby and Hayne JJ): the statements went directly to the facts in issue, so the evidence was not relevant only to credibility — s 102 was never engaged and s 103 did not arise. Gaudron J addressed s 103 directly: evidence "can rationally affect the assessment of the probability of a fact in issue only if it is accepted", so the prior inconsistent statements had substantial probative value — a finding the witness was untruthful in his evidence fundamentally impacted his credibility. |
The unifying thread — remoteness: both "incapable" cases turn on s 103(2)(b) — time elapsed. 50-year-old convictions (Montgomery) and a 20-year-old dismissal (Al-Salmani) are too remote to carry real and persuasive significance for credibility now. Conversely, the "capable" cases involve material going to the witness's present truthfulness or to why they behaved as they did in the events themselves.
Watch the anterior question (Adam): before arguing s 103, ask whether the evidence is relevant only to credibility. If a prior inconsistent statement goes directly to a fact in issue, s 102 is not engaged at all and s 103 is unnecessary (Adam, majority). Running s 103 on evidence that is substantively relevant signals a structural error.
Practice point: where the proposed cross-examination is remote or collateral, seek an advance ruling rather than embarking on it — Al-Salmani treats proceeding without one as itself improper. And remember s 103 governs cross-examination; to prove the matter from another source after a denial you need s 106 (no leave required for a prior inconsistent statement, bias, conviction, inability, or a false representation under an obligation to tell the truth).
GATE 3 · s 104 The accused — the shield
Is the prosecution cross-examining the accused on credibility? Criminal only; in addition to s 103. The accused must not be cross-examined on a credibility matter unless the court gives leave (s 104(2)). No leave needed for the prosecutor to ask about bias/motive to be untruthful, inability to be aware/recall, or a prior inconsistent statement (s 104(3)). Leave is gated by s 104(4): it must not be given unless the accused has adduced — and had admitted — evidence that (a) tends to prove a prosecution witness has a tendency to be untruthful, and (b) is relevant solely or mainly to that witness's credibility — and not evidence about the charged events or the investigation (s 104(5)). Further Protections for the Accused (s 104) From a strategic perspective, it is critical to recognize that s 103 does not operate in isolation during a criminal trial if the witness in the box is the accused. Section 104 of the Act provides additional protections that apply in addition to s 103. An accused must not be cross-examined about a matter relevant only to their credibility unless the court grants leave (s 104(2)). However, the legislation preserves the Crown's right to test the accused's evidence on core matters: leave is not required if the cross-examination relates to whether the accused is biased or has a motive to be untruthful, is unable to be aware of or recall matters to which their evidence relates or has made a prior inconsistent statement (s 104(3)). If the prosecutor seeks to cross-examine the accused on broader credibility issues (such as prior convictions), leave must be refused unless the accused has "thrown away the shield" by adducing evidence that tends to prove a prosecution witness has a tendency to be untruthful (s 104(4)), or if the accused has adduced evidence of their own good character under s 110. → Giving up the shield: merely putting imputations to a prosecution witness is not enough — the qualifying evidence must be admitted (Odgers). "Bias or motive" means more than the accused's general interest in acquittal (Robinson v The Queen; Hargreaves v The Queen). → The balance: even then leave is discretionary (s 192, ss 135/137, fairness) — a former officer's corruption conviction was a valid but finely balanced call (R v El-Azzi). → Co-accused (s 104(6)): leave to cross-examine only where the accused gave adverse evidence that has been admitted.
GATE 4 · s 106 Rebutting denials by other evidence
Did you put it in cross-examination, and the witness denied it? The credibility rule does not apply to evidence adduced from another source to rebut a denial, if in cross-examination the substance was put to the witness, the witness denied / did not admit it, and the court gives leave (s 106(1)). This abolished the finality rule — no more being stuck with the answer. The Preconditions for Admissibility (s 106(1)) Before extrinsic rebuttal evidence can be led, several strict procedural and evidentiary gateways must be cleared: The s 103/104 Gateway: Section 106 requires the evidence to have been put to the witness in cross-examination. This inherently requires that the initial line of questioning was lawfully permitted under s 103 (i.e., the evidence could "substantially affect" the assessment of the witness's credibility) and, if the witness is the accused, that leave was properly obtained under s 104. If the cross-examination on the matter is not permitted, the witness does not have an opportunity to deny it, and extrinsic credibility evidence cannot be adduced under s 106. Proper "Puttage": The cross-examiner must have put the substance of the evidence to the witness during cross-examination (s 106(1)(a)(i)). As clarified in RC v The Queen, this does not require that each and every proposition of the rebuttal evidence be put to the witness, provided the core substance is adequately conveyed. The Denial: The witness must have "denied or did not admit or agree to" the substance of the evidence (s 106(1)(a)(ii)). Forensic care must be taken here; as noted in RC v The Queen, a witness who simply remains mute, or who becomes argumentative and gives non-responsive answers, does not necessarily meet the statutory requirement of denying, not agreeing to, or not admitting the previous statement. Counsel must ensure they secure a clear, unequivocal denial or failure to admit before moving to adduce the rebuttal evidence. If these preconditions are met, the court may grant leave under s 106(1)(b) to adduce the rebuttal evidence. The fact that the court has a residual discretion to grant leave for matters outside the specific statutory exceptions is a major reform from the absolute bar of the common law finality rule. No leave needed (s 106(2)) where the evidence tends to prove the witness: is biased / has a motive; has been convicted of an offence; made a prior inconsistent statement; was unable to be aware of the matters; or knowingly/recklessly made a false representation under an obligation to tell the truth.
GATE 5 · s 108 Re-establishing credibility
Has the witness's credit been attacked — can you rebuild it? The credibility rule does not apply to evidence in re-examination (s 108(1)); and a prior consistent statement is admissible (with leave) where a prior inconsistent statement has been admitted, or it is suggested the evidence was fabricated / reconstructed / the result of suggestion (s 108(3)). Comes up constantly in sex cases — where the defence is "made it up" and credit is attacked, the Crown may adduce complaint evidence for a credibility purpose. Subject to s 39 (re-examination) and s 137. → Leave — will it address the attack? No temporal limit, but an ordinary police statement is usually "devoid of value" (R v Cassar); the circumstances may make it relevant (Friend v The Queen). Leading it from another person (Leung v R), or where the same party adduced the prior inconsistent statement (KNP v R), bears on leave. → Then hearsay opens up: once admitted for credibility under s 108(3), the complaint can be used for a hearsay purpose via s 60 (Pavitt) — unless a s 136 limit is imposed (ISJ).
GATE 6 · ss 108A–108B People who are not witnesses
Is the maker of an admitted previous representation not being called? s 108A: where a previous representation is admitted and the maker will not be called, credibility evidence about them is inadmissible unless it could substantially affect the assessment of their credibility (mirrors s 103; same s 108A(2) factors). s 108B (the accused off the stand): if that person is the accused, credibility evidence needs leave — not required for bias/motive, inability, or a prior inconsistent statement (s 108B(3)); prosecution leave is gated by the same s 104(4)-style preconditions (s 108B(4)). → Impeaching the ROI: where the accused does not testify but their record of interview is played, the Crown may use s 108A — e.g. an abandoned alibi notice went to credit; the Crown may invite the accused to disclose whether they will testify, and refusal may justify a case in reply (R v Siulai).
GATE 7 · s 108C Expert evidence about credibility
Specialised knowledge bearing on another witness's credibility? The credibility rule does not apply to a specialised-knowledge opinion (training / study / experience) that is wholly or substantially based on that knowledge, could substantially affect the assessment of a witness's credibility, and for which the court gives leave (s 108C(1)). Expressly includes child development and behaviour, and the impact of sexual abuse on children (s 108C(2)); in sex cases it can counter stereotypes about how victims behave (see also s 388 Criminal Procedure Act). → Leave is nearly automatic: it will be a rare case to refuse leave where the other s 108C criteria are met — refusing a neuropsychologist's evidence on how drugs/alcohol/sleep deprivation affect a drug-addicted witness's memory was error (Audsley v The Queen [2014] VSCA 321).
The exceptions at a glance¶
| s | Exception | Key threshold |
|---|---|---|
| 103 | Cross-examination | could substantially affect credibility; no leave (but see s 104 for the accused). |
| 104 | The accused | criminal — leave required, gated by s 104(4); free list in s 104(3). |
| 106 | Rebutting denials | substance put + denied + leave (free list in s 106(2)). |
| 108 | Re-establishing | re-examination; prior consistent statement + leave (s 108(3)). |
| 108A/B | Non-witnesses | substantially affect; if the person is the accused, leave (s 108B). |
| 108C | Experts | specialised knowledge + substantially affect + leave. |
The recurring 'no-leave' categories¶
| Automatic category (no leave) | s 104(3) | s 106(2) | s 108B(3) |
|---|---|---|---|
| Bias / motive to be untruthful | ✓ | ✓ | ✓ |
| Prior inconsistent statement | ✓ | ✓ | ✓ |
| Unable to be aware of / recall matters | ✓ | ✓ | ✓ |
| Prior conviction of an offence | — | ✓ | — |
| Knowing/reckless false representation under an obligation | — | ✓ | — |
Provisions at a glance¶
| s | Effect |
|---|---|
| 101A | Defines credibility evidence — relevant only to credibility, or dual-relevant but barred by Parts 3.2–3.6. |
| 102 | The credibility rule — credibility evidence about a witness is inadmissible. |
| 103 | Cross-examination exception — evidence that could substantially affect credibility. |
| 104 | The accused — leave to cross-examine on credibility, gated by s 104(4); free list in s 104(3). |
| 106 | Rebutting denials from another source — substance put + denied + leave (free list in s 106(2)). |
| 108 | Re-establishing credibility — re-examination; prior consistent statement + leave (s 108(3)). |
| 108A / 108B | Non-witnesses — substantially affect; leave if the person is the accused. |
| 108C | Experts — specialised-knowledge opinion on credibility, with leave (child development / abuse expressly included). |
| 38 / 60 / 91 / 178 | Related levers — leave to cross-examine your own witness (s 38); credibility → hearsay (s 60); s 178 certificate & s 91 bar for convictions. |
| 135 / 136 / 137 | Discretionary exclusion / limiting orders over any admitted credibility evidence. |
Case law at a glance¶
| Case | The point it stands for |
|---|---|
| Dupas v R (2012) 40 VR 182 | For the credibility rule, credibility = truthfulness and reliability — no distinction. |
| Destanovic & Tangaloa v R (2015) 49 VR 276 | In joint trials, credibility reasoning must respect separate consideration — corroboration for one accused can't bolster a witness against a co-accused it is not admissible against. |
| BA [2012] VSCA 285 | The Act replaced the common-law rules (e.g. oath-helping about a witness's reputation for lying). |
| R v RPS (NSWCCA, 13 Aug 1997) | "Substantially" is a genuine limit on s 103 — though counsel may "work up to" the point. |
| R v Beattie (1996) 40 NSWLR 155 | Assess s 103 assuming the witness answers most favourably to the questioner. |
| R v Lumsden [2003] NSWCCA 83 | A conviction showing disregard for an important law (drug supply) can substantially affect credit. |
| Dodge v Snell [2011] TASSC 19 | Robbery is a conviction capable of substantially affecting credit. |
| Montgomery v The Queen [2013] NSWCCA 73 | Convictions too remote (50 years) lack substantial probative value on credit. |
| Robinson v The Queen (1991) 180 CLR 531 · Hargreaves v The Queen (2011) 85 ALJR 1254 | "Bias or motive to be untruthful" means more than the accused's general interest in acquittal. |
| R v El-Azzi [2004] NSWCCA 455 | s 104 leave to cross-examine the accused on a serious prior (corruption) — a valid but finely balanced discretion. |
| R v Cassar [1999] NSWSC 352 | An ordinary police statement is usually "devoid of value" as a prior consistent statement. |
| Friend v The Queen [2007] NSWCCA 41 | But the circumstances of a prior consistent statement may make it relevant to answer an attack. |
| Leung v R [2003] NSWCCA 51 | Leading a prior consistent statement from another person bears on leave under s 108(3). |
| KNP v R (2006) 67 NSWLR 227 | That the same party adduced the prior inconsistent statement bears on leave to rebuild credit. |
| Pavitt [2007] NSWCCA 88 · ISJ [2012] VSCA 321 | Complaint admitted for credibility (s 108(3)) can then be used for hearsay via s 60 — unless limited under s 136. |
| R v Siulai [2004] NSWCCA 152 | s 108A can impeach a non-testifying accused's ROI (abandoned alibi notice); the Crown may invite disclosure and seek a case in reply. |
| Audsley v The Queen [2014] VSCA 321 | s 108C — it is a rare case to refuse leave for qualifying expert credibility evidence (memory effects of drugs/alcohol/sleep deprivation). |
Key authority watch¶
• Victorian anchors: Dupas (credibility = reliability), Destanovic (separate consideration), ISJ (s 60 / s 136 on complaint), Audsley (s 108C leave).
• The accused's shield: El-Azzi (the s 104 discretion), Robinson / Hargreaves (bias means more than an interest in acquittal), Siulai (s 108A and the ROI).
• Cross-examination limits: RPS / Beattie (the "substantial" threshold), Lumsden / Montgomery (convictions — disregard for law, but not too remote).