4.5 Cross-examination as to credibility[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.
- 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.
- Sometimes the challenge is purely indirect, an attack upon the credibility of the witness.
If elaboration is required, insert the following shaded section:
- 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.
- 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.
- 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’.
- 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
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[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.