Credit, in the context of litigation (and criminal law), refers to the credibility of a person or a witness who is called upon to give evidence at a hearing. The credibility of a witness is tested under cross-examination to determine whether either the person or the evidence itself is reliable.
Pursuant to section 3 of the Evidence Act 1995 (NSW) (Evidence Act) credibility has two separate definitions. The first definition relates specifically to a representation made by a “person” that has been admitted into evidence, whereas the second definition refers to the evidence of a “witness”. The difference between the two definitions is that the former relates to representations of a person who is not a witness (i.e. a person who has not been called to give evidence in a proceeding).
Credibility of a witness
Section 101A of the Evidence Act relevantly states that:
Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that:
- is relevant only because it affects the assessment of the credibility of the witness or person; or
- for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.
The dictionary of the Evidence Act defines credibility in the context of a witness as:
“… the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence”.
The credibility of a witness refers to both their general reliability as well as the reliability of the evidence that they give. Judge Windeyer in Wren v Emmett Contractors Pty Ktd (1969) stated that some of the following matter beared weight on the credibility of a witness:
- Motive to be untruthful;
- Opportunities of observation
The Credibility Rule
Other than in certain situations, pursuant to section 102 of the Evidence Act, credibility evidence, as described in section 101A, is inadmissible. However, the crucial qualifier under section 101A of the Evidence Act is that if the credibility evidence is adduced for a purpose other than solely for credibility purposes, then that evidence will be admissible. Evidence adduced in this situation is not credibility evidence.
Credibility of hearsay evidence
Section 108A of the Evidence Act envisages a situation where the credibility of a “previous representation” (i.e. hearsay evidence) is called into question. Section 108A of the Evidence Act relevantly provides that:
Admissibility of evidence of credibility of person who has made a previous representation
- Evidence of a previous representation has been admitted in a proceeding; and
- The person who made the representation has not been called, and will not be called, to give evidence in a proceeding;
credibility evidence about the person who made the representation is not admissible unless the evidence could substantially affect the assessment of the person’s credibility.
The dictionary of the Evidence Act defines credibility in the context of hearsay as:
“Credibility” of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the witness’s ability to observe or remember facts and events about which the person made the representation.
The test of “could substantially affect the assessment of the person’s credibility” is the same test that is applied to section 103 of the Evidence Act (cross-examination exception) and must have “substantial probative value” and must “impact on the assessment of the veracity and accuracy of the witness [or in this case the person making the representation] (See Australian Law Reform Commission Report 102 at paragraph 12.28).