ABSTRACT
McHugh J made the point in Palmer v R (1998) that the line between evidence relevant to credit and evidence relevant to a fact in issue is often ‘indistinct and unhelpful’; the credibility of a witness may be of such crucial importance that it is decisive of the facts in issue; and evidentiary rules, based on the distinction between issues of credit, and facts in issue, should not be regarded as hard and fast rules of law, but as a well established guide to the exercise of judicial regulation of the litigation process. Although those comments were made in relation to the common law, Smart J in the New South Wales Court of Criminal Appeal cited them approvingly in relation to the NSW Evidence Act 1995 in R v V (1998), saying that he found them helpful and persuasive. In R v V, the accused was charged with various sexual assaults on his stepdaughter. In cross-examination, she related an incident that was not the subject of the charges, which took place when she was 15 years old at a family barbecue. She said that the accused had pinched her breast, and when a family friend, Mr Best, protested, the accused told him ‘I’m allowed to do that, she’s my daughter’. The accused wanted to call Mr Best as a witness, and Mr Best was expected to deny that the incident ever occurred. However, the trial judge refused to allow Mr Best to be called, citing the credibility rule. The Court of Criminal Appeal decided that the trial judge was wrong in applying the credibility rule, as Mr Best’s evidence did not relate only to the stepdaughter’s credit as a witness, but also to the issue of the relationship between the accused and the stepdaughter: Mr Best’s evidence could show that it was less likely that that relationship was one in which there was sexual misconduct on the part of the accused.
