4.5 Cross-examination as to credibility[1]

  1. The reliability of a witness’s evidence is often challenged by cross-examination.The challenge may be as to the reliability of the witness’s evidence of factual matters; or, in the case of an expert witness, as to the reliability of their expressed opinion.
  2. Sometimes, the challenge will be both a direct attack upon the reliability of the witness’s evidence and an indirect attack upon the witness’s credibility.
  3. Sometimes the challenge is purely indirect, an attack upon the credibility of the witness.

If elaboration is required, insert the following shaded section:

  1. To give an example of the first situation: the plaintiff was attacked as having provided a false account of the severity of their disability, as allegedly demonstrated by surveillance film.
  2. To give an example of the second situation: the expert witness Dr [X] was attacked as having a background of always providing opinion favourable to the defendant’s side.

  1. I am presently concerned only with the second situation.I direct you that so far as cross-examination is directed to a witness’s credibility, the only purpose to which it may be put is this: if you conclude that an allegation made against the witness has been established, it may – not, must – cause you to doubt the reliability of the witness’s evidence upon issues which are relevant to deciding the case.It may lead you to say – but you are not obliged to say – ‘this is a witness whose evidence about a matter critical to deciding this case we are not prepared to accept’; or ‘we are prepared to accept the witness’s evidence less readily’.
  2. In the case of the second example which I gave you, you might conclude that the credibility attack had no impact upon the reliability of the expert’s opinion; or you might decide the contrary.It is a matter for you.[2]

Last updated: 14 April 2014

1

[1] Note: This charge is a guide only, and may require modification to fit the facts of an

individual case

[2]The following are relevant notes to this direction:

(1)In this direction, ‘credibility’ has been used throughout. ‘Credit’ was the word used in pre-Evidence Act 2008 directions.

(2)The Evidence Act 2008 deals with credibility evidence, relevantly to a civil proceeding, at ss 101A, 102, 103 and 106. The term ‘credibility evidence’ is restrictively defined. See particularly s101A(a). The pertinent exception to the credibility rule is contained in s 103.

(3)One kind of challenge to credibility is by proof of criminal convictions. The right to adduce such proof in civil proceedings is preserved by s 92(1) of the Evidence Act 2008. That is subject to the possible operation of s 135.