12–1 The uniform Evidence Acts should be amended to include a definition of the evidence to which the credibility rule applies and to make consequential amendments to ss 102, 104 and 108A to ensure that the provisions of Part 3.7 apply to evidence:
- relevant only to credibility; and
- relevant to credibility and relevant for some other purpose, but not admissible or capable of being used for that other purpose because of a provision of Parts 3.2 to Parts 3.6 inclusive.
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’.
12–3 Section 104(4)(a) of the uniform Evidence Acts should be deleted from s 104(4) to remove the overlap between s 104(4)(a) and Part 3.8.
12–4 For consistency in drafting, s 112 of the uniform Evidence Acts should be amended by substituting ‘A defendant must not be cross-examined’ for ‘A defendant is not to be cross-examined’.
12–5 Section 106 of the uniform Evidence Acts should be amended to enable evidence to be adduced with the leave of the court to rebut denials and non-admissions in cross-examination. Leave should not be required to adduce evidence of the kind presently identified in paragraphs (a) to (e) of s106.
12–6 Section 108A of the uniform Evidence Acts should be amended to provide that, where the defendant in a criminal trial has not or will not be called to give evidence and evidence of a previous representation of the defendant has been admitted, the same restrictions should apply to evidence relevant to the credibility of a defendant as apply under s 104 when a defendant gives evidence at trial.
12–7 The uniform Evidence Acts should be amended to include a new exception to the credibility rule which provides that, if a person has specialised knowledge based on the person’s training, study or experience, the credibility rule does not apply to evidence given by the person, being evidence of an opinion of that person that: (a) is wholly or substantially based on that knowledge; and (b) could substantially affect the assessment of the credibility of a witness; and (c) is adduced with the court’s leave. The Acts should also include a provision clarifying that the evidence to which the exception applies includes evidence about child development and behaviour (including the effect of sexual abuse).
12–8 Sections 25, 105, 108(2) and 110(4) of the Evidence Act 1995 (Cth) should be repealed to reflect the fact that there is no longer provision under Australian law for unsworn statements to be made by a defendant in a criminal trial.