12.20 Section 103(1) of the uniform Evidence Acts provides that:
The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value.
12.21 The expression ‘probative value’ is defined to mean:
the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
12.22 It has been argued that this definition cannot apply to the phrase in s 103 because the definition refers to the relationship between evidence and a fact in issue, rather than to issues of credibility. In R v RPS, Hunt CJ at CL suggested that the context in which the phrase appears and the subject matter of s 103
indicate that the definition does not apply … Evidence adduced in cross-examination must therefore have substantial probative value in the sense that it could rationally affect the assessment of the credit of a witness.
12.23 The issue was raised in IP 28 of whether the construction adopted by the NSW Court of Criminal Appeal in RPS should be incorporated into the Act. The proposal put forward in DP 69 was to amend s 103(1) of the uniform Evidence Acts to read:
The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness.
Submissions and consultations
12.24 There is general support for further defining the term ‘substantial probative value’ for the purposes of s 103.
The Commissions’ view
12.25 While the interpretation of substantial probative value in s 103 in the NSW Court of Criminal Appeal’s decision in R v RPS has allowed the courts to give meaning to the section, the Commissions consider that it is preferable to amend s 103 expressly to incorporate that construction. This would limit the need to go beyond the Acts to determine the meaning of its provisions. The amendment is intended to maintain the requirement that the evidence relevant to credibility be substantial in order to be admitted.
Recommendation 12–2 Section 103(1) of the uniform Evidence Acts should be amended to read as follows: ‘The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence could substantially affect the assessment of the credibility of the witness’.
 Uniform Evidence Acts Dictionary, Pt 1; Evidence Act 2001 (Tas) s 3(1).
R v RPS (Unreported, New South Wales Court of Criminal Appeal, Gleeson CJ, Hunt CJ at CL and Hidden J, 13 August 1997). The appeal on another point was allowed: RPS v The Queen (2000) 199 CLR 620.
 Australian Law Reform Commission, Review of the Evidence Act 1995, IP 28 (2004), [9.15]–[9.22].
 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), Proposal 11–2.
 Director of Public Prosecutions (NSW), Submission E 17, 15 February 2005; Director of Public Prosecutions (NSW), Submission E 87, 16 September 2005; New South Wales Public Defenders Office, Submission E 89, 19 September 2005; The Criminal Law Committee and the Litigation Law and Practice Committee of the Law Society of New South Wales, Submission E 103, 22 September 2005.