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Evidence: 20th May: OUTLINE 5: VERACITY EVIDENCE: Before the Act, propensity and veracity were lumped together as character evidence - veracity =
credibility. There is a close relationship between propensity and veracity. S40(4) Important provision. If the evidence is soley or mainly related to veracity, the veracity rules apply (forget about propensity rules). S37(5) Defines veracity - a disposition (propensity?) of a person to refrain from lying, whether generally or in the proceeding. If someone in the trial says something you think is a lie, you can go after it. Doesn't deal with accuracy. S37(1) Basic veracity rule - in order to get it in, it must be substantially helpful in assessing a person's veracity. Expert opinion rule is framed in the same way, 'substantially helpful'. NB, s37(1) covers offering evidence ('offering evidence, s7, covers cross examination') Lahaina:
- Appeal by two accused, violent robbery, on the basis that the trial judge had been wrong to allow the Crown to cross examine them on their criminal records
- Convictions for dishonesty, and also allowed cross examination on convictions for violence. If this was an exam question, for the violence conviction you would focus on propensity. The case said that allowing the cross examination on violence, just said veracity, appeal judge said propensity. CA looked at s41 propensity evidence about defendants. Didn't fit, so trial judge was wrong. CA - wrong for Crown to try and sneak in propensity section if defendant under s41 had offered propensity evidence about himself. Crown asked in cross examination - are you a violent person?
Sneaky cross examination with the aim to get the door opened under s41.
25th May: R v Tepu: Mahoney thinks this case was wrong.
- Raised the issue of Crown evidence relating to lies told prior to the trial by the accused. CA said yes, Crown can put in the evidence. Mahoney thinks there are problems with this conclusion, whether the evidence is caught by s38(2). Evidence of defendant's veracity. Limitations on crown ability to put in veracity evidence. s38(2)(a) Only when defendant offered evidence about their own veracity, or, if you challenge the veracity of the prosecution witness by reference to matters other than the facts in issue. CA held - Evidence about the defendant's lies are not veracity evidence, not caught by s38(2), because even though everyone agreed that they were using evidence to attach credibility, argued it didn't fit the veracity definition under s37(5), disposition to lie generally. Pretrial lies don't show general predisposition to lie, only relates to those lies. Mahoney sees it as classic veracity evidence. S36 Application. Rules in subpart - Veracity and propensity do not apply to evidence about a person's veracity if that veracity is an ingredient in a claim in civil proceedings or one of the elements of the offence. s40(1)(b)
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