Credibility of persons making a previous representation

12.94 Section 108A addresses the situation where evidence of a previous representation has been admitted and the maker of the previous representation is not called as a witness. Section 108A currently provides that where the previous representation is not subject to the hearsay rule because of a provision of Part 3.2, and has been admitted, evidence relevant to the credibility of the maker of the representation is not admissible unless the evidence has substantial probative value.^[107] In DP 69 the Commissions discussed whether s 108A of the uniform Evidence Acts is sufficiently wide to allow the admission of evidence relevant to re-establishing the credit of the person who made the previous representation after evidence has been admitted attacking their credit.^[108] The Commissions expressed the view in DP 69 that s 108A applies to evidence led either to attack credit or to rehabilitate credit and therefore no amendment was proposed. This conclusion was not challenged in submissions or consultations on DP 69.

12.95 Since publication of DP 69 other issues concerning the drafting of s 108A have come to the attention of the Commissions which require amendment of the section. Of particular concern is the situation where evidence is led of a previous representation of the defendant in criminal proceedings and the defendant does not give evidence.

12.96 While s 108A is frequently referred to as a permissive section—allowing evidence to be led as to the credit of the maker of a previous representation not called to give evidence,^[109] it is in fact a restrictive section. But for s 108A, there would be no control of evidence relevant to credibility of the maker of a previous representation not called to give evidence pursuant to Part 3.7. The other provisions of Part 3.7, in particular the credibility rule, apply to evidence relevant to the credibility of a witness. They do not apply to the credibility of a person who is not a witness.^[110] When understood in this light there is a good case for expanding the scope of s 108A and providing greater controls on the admission of evidence relevant to the credibility of the maker of a previous representation.

12.97 In criminal proceedings there are several situations in which a previous representation of the defendant may be admitted, namely:

• where the evidence of the previous representation is admitted under the admission provisions;^[111]
• where a previous representation of the defendant is admitted for a non-hearsay purpose;^[112]
• where a previous representation of the defendant is admitted under an exception to the hearsay rule in Part 3.2.^[113]

12.98 In each instance the defendant’s credibility may be in issue.

12.99 In the first instance referred to above, where evidence of a previous representation of the defendant has been admitted under the admission provisions in Part 3.4, no restriction is placed on the admissibility of evidence relevant to the credibility of the defendant by Part 3.7. This is because s 108A applies only where ‘because of a provision of Part 3.2, the hearsay rule does not apply’. In the other two situations referred to, s 108A will apply, either because the hearsay rule does not apply in terms or because the previous representation is admitted under an exception to the hearsay rule, but the only restriction imposed is that the credibility evidence be of substantial probative value. This leaves defendants without the protections afforded by s 104 which would apply if they chose to give evidence. For example, there would be no restriction on the admission of evidence as to the defendant’s prior convictions for dishonesty.

12.100 Research has identified two New South Wales decisions which have held that s 108A applies where evidence of a previous representation of the defendant has been led and the defendant does not give evidence.^[114] In both instances the previous representation of the defendant was a record of interview tendered by the prosecution which contained what could be described as exculpatory statements.^[115] The defendants in each case were exposed to the possibility of credibility evidence being led against them not by their own act, but by that of the prosecution.

12.101 In R v Arthurell,^[116] Hunt CJ at CL considered the operation of s 108A. He found that where exculpatory statements by the defendant in a record of interview had been admitted along with his admissions against interest, evidence relevant to the credibility of the defendant would be admissible against the accused if it met the requirement of substantial probative value under s 108A, subject to ss 135–137.^[117]

12.102 In R v Siulai,^[118] the NSW Court of Criminal Appeal held that evidence of an alibi notice filed on behalf of the appellant, but subsequently contradicted by a formal admission that the appellant was present at the scene, was admissible pursuant to s 108A as relevant to his credibility.^[119]

12.103 The above cases demonstrate the potential for s 108A to apply to a defendant in a criminal trial. While the outcome in each case was relatively benign, the potential unfairness to the defendant is clear.

The Commissions’ view

12.104 In the Commission’s view the potential operation of s 108A is most unsatisfactory. Defendants are exposed to the possibility of adverse credibility evidence being led against them by the prosecution, not because they have led any evidence, but because the prosecution has led that evidence. That evidence is not then subject to the same limits as would apply where defendants give evidence. The provisions as they stand create a situation where the defendant’s right to silence is compromised because the only way to obtain the protection of s 104 is to give evidence.

12.105 The Commissions are of the view that a defendant should not be placed at any greater disadvantage than would follow if that defendant had given evidence as a witness, particularly where the opportunity to lead evidence relevant only to credibility arises because the prosecution has led evidence of a previous representation of that defendant. The clear intention behind s 108A was to apply the same rules which apply to witnesses giving evidence in court to the makers of previous representations admitted in evidence under an exception to the hearsay rule.^[120]

12.106 The Commissions consider that two aspects of s 108A need to be amended:

• section 108A needs to control the admission of credibility evidence whenever evidence of a previous representation is admitted and the maker of the representation is not called; and

• the section needs to apply restrictions on evidence relevant to the credibility of the maker of previous representation equivalent to those which apply to evidence relevant to the credibility of a witness, including the protections afforded by s 104.

12.107 It may be said that s 108A should not apply where the previous representation is constituted solely by an admission against interest, as the credibility of the maker of the representation is not then in issue. The Commissions are of the view that such situations will be rare, and, in that instance, the requirement of relevance should operate to exclude the evidence. A draft of an amended s 108A appears in Appendix 1.