12.44 In IP 28 and DP 69, the differences in the provisions of s 104 as between Tasmania and the other uniform Evidence Act jurisdictions relating to the circumstances in which leave may be granted to cross-examine a defendant in criminal proceedings as to credibility were discussed.
12.45 Section 104(4) of Evidence Act 2001 (Tas) provides that leave may be granted to cross-examine the defendant as to credibility where:
(c) the nature or conduct of the defence involves imputations on the character of the prosecutor or any witness for the prosecution.
12.46 Thus, under the Evidence Act 2001 (Tas), leave may be given where the conduct of the defence includes an attack on the character of the prosecutor or any witnesses for the prosecution. Under the other uniform Evidence Acts, leave is confined to a particular aspect of the conduct of the defence, namely where evidence is adduced by the defendant relevant solely or mainly to the credibility of prosecution witnesses and where that evidence has been admitted. Further, the other uniform Evidence Acts contain a provision which excludes from consideration evidence in relation to:
the events in relation to which the defendant is being prosecuted; and
the investigation of the offence for which the defendant is being prosecuted.
12.47 The provision ensures that leave is not to be granted in the situation where the defendant leads evidence that a witness lied in relation to the events in question or where the defendant leads evidence of police misconduct in relation to the investigation of the alleged offence. There is no equivalent in the Tasmanian Act.
12.48 The Law Reform Commissioner of Tasmania explained the reasons for adopting a different approach as follows:
Under the [uniform Evidence Acts], the accused can cross-examine Crown witnesses uphill and down dale with respect to their bad character or his own good character but so long as their answers consist of denials the accused will not be exposed to loss of the character shield. This seems inherently unfair, particularly where the cross-examination relates to the witnesses’ possible bad character. The process is equally harrowing, demeaning and potentially damaging for the witness in terms of the jury’s perceptions where the witness simply denies the accused’s suggestions as where the evidence is actually adduced.
12.49 In DP 69, the Commissions considered the issues of policy which led the Commissions to the view that the Tasmanian approach should not be adopted by the other uniform Evidence Act jurisdictions.
12.50 The view is expressed that the reasons articulated in the interim report of the previous Evidence inquiry (ALRC 26) and by reports of United Kingdom law reform bodies for rejecting a more permissive approach towards allowing cross-examination of defendants remain applicable. Speaking of this approach, the ALRC said:
it discourages an accused with a criminal record from attacking the credibility of Crown witnesses. If the Crown witnesses’ credibility is properly open to attack, then the jury should know about it;
the admissibility of evidence adverse to the accused will depend on the tactics of the defence. This is wrong. The legal advisers are placed in the invidious position of having to choose between leaving the tribunal of fact in ignorance of the facts behind the evidence given by the prosecution witnesses and revealing such facts, but allowing the prosecution as a result to introduce prejudicial evidence against the accused including evidence of prior convictions. Whether the accused is convicted or not may depend on the way in which this choice is made, but it is not one that legal advisers should be called on to make. A Rule that operates in this way turns a criminal trial into a kind of game;
the sanction will apply whether the attack made is necessary for the accused’s defence or not and whether the attacks made on the prosecution witness are true or not;
if a sanction is required for false attacks on prosecution witnesses, the sanction should not be one which will make it more likely that the accused will be convicted because of prejudice that may be raised against him because of the allegations made in cross-examination to demonstrate his bad character;
if cross-examination of an accused as to his bad character is not permitted because it would be prejudicial, it does not become any less prejudicial because the accused makes an attack on the character of prosecution witnesses;
the law allows an attack on the accused’s credibility where he does not in his evidence attack the character of a prosecution witness, but his complete defence involves such an attack. If ‘Tit for tat’ is the justification, the law goes further than is warranted. 
12.51 Further, the broader approach, ‘could tempt the police to extract confessions by violence from persons of bad character who cannot set up the violence at their trial for fear of exposing their records’.
12.52 In DP 69, the Commissions referred to the means within the uniform Evidence Acts to prevent inappropriate or unwarranted cross-examination through the requirements of s 41 (improper questions) and s 103 (the substantial probative value requirement for cross-examination). The Commissions expressed the view that these are the appropriate means through which to prevent inappropriate cross-examination of prosecution witnesses ‘uphill and down dale with respect to their bad character’ rather than the admission of prejudicial evidence.
12.53 In DP 69, the Commissions also commented on the argument that it is unfair that the defendant can put allegations and not lose the character shield when those allegations are denied. It was noted that in that situation, in law and fact, there is no evidence before the jury of the witnesses’ character. Juries are directed that the questions of counsel are not evidence unless the answers affirmatively adopt a proposition put in the question. It is undoubtedly extremely unpleasant for witnesses to face allegations reflecting badly on their character. The point was made in DP 69, however, that it is both unethical and imprudent for counsel to put such allegations to witnesses if they are without reasonable foundation or there are no reasonable grounds for believing that the suggestion would diminish the witness’ credibility.
12.54 The Commissions noted that particular concerns have arisen about attacks on the credibility of witnesses in sexual assault cases, but that these concerns have, to some extent, been addressed by rape shield laws, which are discussed in Chapter 20.
Submissions and consultations
12.55 Submissions and consultations in response to IP 28 revealed divergent views on whether the Tasmanian provision should be adopted across jurisdictions. The NSW DPP and Office of the Director of Public Prosecutions (Tas) supported the adoption of the Tasmanian provision across jurisdictions.
12.56 The NSW DPP considers it unfair that an accused can cross-examine Crown witnesses in relation to their bad character or the accused’s good character when the Crown is prevented from cross-examining an accused as to character unless the accused actually adduced evidence to prove the Crown witness ‘has a tendency to be untruthful’ and the Crown obtains leave to cross-examine. The NSW DPP submits that if the section is amended in line with the Tasmanian provisions, it would further discourage an accused from cross-examining Crown witnesses as to character.
12.57 The Office of the Director of Public Prosecutions (Tas) considers that these provisions are justifiably fairer to the Crown than those under the other uniform Evidence Acts. Consultations confirm that cross-examination under s 104(4)(c)—on the basis that the defence has raised ‘imputations on the character of the prosecutor or any witness for the prosecution’—is very rare.
12.58 The NSW PDO opposes the adoption of the Tasmanian provisions because they appear to mean that
in any case where it was suggested that prosecution witnesses were lying, the accused could be cross-examined about his or her criminal record. It would follow that in many, if not most, trials the defendant’s criminal record would be admitted.
12.59 The Law Council of Australia expresses support for the other uniform Evidence Acts’ provisions which it believes
ensure a fair trial by allowing an accused to fully test prosecution evidence without running the risk of a prejudicial past being revealed.
12.60 Following the release of DP 69 further submissions have been received, again revealing divergent views. Victoria Police supports the adoption of the Tasmanian provision, while others submit that s 104(4)(b) as it appears in the Commonwealth and NSW Acts should be tightened further by replacing the phrase ‘that tends to prove’ with ‘for the purpose of proving’.
The Commissions’ view
12.61 In the Commissions’ view, the Tasmanian provisions are an inappropriate means of discouraging unwarranted attacks on prosecution witness. They will also be ineffective where the accused elects not to give evidence or does not have a criminal record for dishonesty. The submissions and consultations supporting the adoption of the Tasmanian provisions have not addressed the policy concerns set out in DP 69. The Commissions are not persuaded that there is any reason to depart from the preliminary view expressed in DP 69 that the Tasmanian provisions are not to be preferred. Therefore the Commissions do not recommend the adoption of the Tasmanian provisions in other uniform Evidence Act jurisdictions.
 Provisions to similar effect are to be found in Crimes Act 1958 (Vic) s 399(5)(b).
 Section 104(5) in the Evidence Act 1995 (Cth) and Evidence Act 1995 (NSW).
 Law Reform Commissioner of Tasmania, Report on the Uniform Evidence Act and its Introduction to Tasmania, Report 74 (1996), 24, fn 34. Where the accused leads evidence of his or her own good character under the uniform Evidence Acts, s 110 lifts the credibility rule for evidence adduced to prove that the defendant is not a person of good character. This is made clearer with the removal of s 104(4)(a).
 Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [11.63]–[11.67].
 Ibid, [11.68].
 Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), .
 Criminal Law Revision Committee England and Wales, Evidence (General), Report 11 (1972).
 Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), , citing Criminal Law Revision Committee England and Wales, Evidence (General), Report 11 (1972).
 Australian Law Reform Commission, Evidence, ALRC 26 (Interim) Vol 1 (1985), , citing Curwood v The Queen (1944) 69 CLR 561.
 Australian Law Reform Commission, New South Wales Law Reform Commission and Victorian Law Reform Commission, Review of the Uniform Evidence Acts, ALRC DP 69, NSWLRC DP 47, VLRC DP (2005), [11.71].
 Law Reform Commissioner of Tasmania, Report on the Uniform Evidence Act and its Introduction to Tasmania, Report 74 (1996), 24.
 See, for example, The Victorian Bar Inc Practice Rules (Vic), rr 38–40.
 Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005; Office of the Director of Public Prosecutions (Tas), Consultation, Hobart, 15 March 2005.
 Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005.
 Office of the Director of Public Prosecutions (Tas), Consultation, Hobart, 15 March 2005.
 Ibid; Chief Justice P Underwood, Consultation, Hobart, 15 March 2005.
 New South Wales Public Defenders Office, Submission E 89, 19 September 2005.
 Law Council of Australia, Submission E 32, 4 March 2005.
 Victoria Police, Submission E 111, 30 September 2005.
 Confidential, Submission E 63, 29 August 2005. This submission supports retention of the current drafting in the alternative.