Area of Law – Sexual Offences

An Article about Evidence complainant is a liar in sex cases

Evidence that the alleged victim in a sex case is a liar
Just as you can call good character evidence so can you call bad character evidence. Witnesses can be called to say that the alleged victim in a sex case (or any other case) is a liar. It is an important right especially where the case against you relies on the evidence of one person who you say is lying about what happenned.

Like good character evidence the amount you can ask of a witness is generally fairly limited.It is generally along the lines of

“From your knowledge of the witness would you believe him on his oath?”

In a Court of Appeal case in 2009 the Court of Appeal in Victoria considered the postion in relation to this rule as follows;

“The rule that allows such evidence to be led is well established. According to Wigmore, it dates back to 1664.

The modern formulation of the rule is stated in Archbold, Criminal Pleading, Evidence and Practice 2009, in the following terms:

Whether a witness has or has not been convicted, witnesses may be called to speak as to his general character, although not as to any particular offence of which he may be guilty: 2 Hawk. c. 46 s.207; R v Rookwood (1696) 13 St Tr. 139 at 211; and R v Watson (1817) 32 St Tr.1. In order to impeach the credit of a witness for veracity, witnesses may be called by the other side to prove that his general reputation is such that they would not believe him upon his oath: R v Brown and Hedley (1867) LR 1 CCR 70.

In practice the question usually put is ‘From your knowledge of the witness would you believe him on his oath?'[5]

After referring to the decision of the Court of Appeal in R v Richardson; R v Longman,[6] (hereafter ‘Richardson’) to which we shall shortly return, Archbold continues:

The impeaching witness may not, in examination-in-chief, give reasons for his belief, but he may be asked for his reasons in cross-examination, and his answers in cross-examination cannot be contradicted: R v Gunewardene [1951] 2 KB 600, 35 Cr App R 80, CCA; R v Richardson, ante; cf. Toohey v Metropolitan Police Commr, post.

In R v Gunewardene,[8] upon which the Court of Appeal in Richardson most heavily relied, the appellant, a medical practitioner, was convicted of manslaughter. The case against him was that he had counselled or procured an illegal abortion, which had been performed on a woman who had died as a consequence thereof. It was alleged, therefore, that he was a principal in the second degree to her death.

At the trial, the prosecution called a witness who gave evidence that was highly damaging to the appellant. After the appellant had himself given evidence, his counsel wished to call a doctor to testify as to the reliability of the prosecution witness and, particularly, as to the state of that witness’s mind. When the prosecutor objected, counsel for the appellant submitted that the evidence was admissible on the ground of reputation for truthfulness and honesty.

Lord Goddard CJ delivered the judgment of the Court of Criminal Appeal (Lynskey and Devlin JJ agreeing). His Lordship said:

That witnesses can be called to say that they would not believe a particular witness called by the other side, whether for the prosecution in a criminal case or for a party in a civil case, is, in the opinion of the court, undoubted; but the nature of the discrediting evidence and how far the witness can go in stating the grounds for his belief are the matters which the court has to determine.

After citing authorities going back as far as the seventeenth century, Lord Goddard noted that originally a witness called to impeach the credibility of another was confined to giving evidence as to general reputation, and could not state his individual opinion. His Lordship continued:

But later cases show that the rule has at any rate been relaxed, though Lord Ellenborough seems to have taken much the same view in Mawson v. Hartsink, where, after some discussion, he allowed the question to be put in this way … ‘Have you the means of knowing what the general character of this witness was? and from such knowledge of his general character, would you believe him on oath?’

Mawson v Hartsink, to which his Lordship referred, was but one of a number of cases decided in the early part of the nineteenth century regarding the scope of this rule. In Carlos v Brook, Lord Eldon observed that a witness may be asked whether he would ‘believe a man on his oath’, but that it was not competent to ask him the ground of his opinion. In R v Bispham, it was held that a person called to give evidence need not have personal knowledge of false testimony by the impugned witness in order to be permitted to testify in accordance with this rule. Several years later, in R v Hemp, it was held that even if the person called had such personal knowledge, he or she would not be allowed to refer to it under the ban on collateral matters. Other early nineteenth century cases dealing with this rule include R v Rudge and Harris v Tippett.

In Gunewardene, having discussed Mawson v Hartsink, Lord Goddard next referred to R v Watson, where it was held that while a witness could be called to say that he would not believe a previous witness on his oath, he could not give evidence in-chief of the particular facts that led him to that conclusion.

36 His Lordship then referred to Stephen’s Digest of the Law of Evidence:

The credit of any witness may be impeached by the opposite party, by the evidence of persons who swear that they, from their knowledge of the witness, believe him to be unworthy of credit upon his oath. Such persons may not upon their examination in chief give reasons for their belief, but they may be asked their reasons in cross-examination, and their answers cannot be contradicted.

37 It should be noted that Gunewardene was considered, and cited with approval, by the House of Lords in Toohey v Metropolitan Police Commissioner.

38 There is a particularly helpful discussion of the rule in Richardson. The defendants were charged with having conspired to pervert the course of justice by attempting to influence a jury and with having suborned witnesses at a trial in which the brother of one of the defendants was among those tried.

At the trial, the main prosecution witness gave evidence. In order to discredit her, the defence called a witness who was asked whether he would believe her on her oath. He replied that ‘in certain particulars’ he would. However, the trial judge intervened and refused to allow the witness to be asked the further question whether, from his personal knowledge, he would believe her on her oath. The trial judge also refused to allow him to qualify his previous answer.

The judgment of the Court of Criminal Appeal was delivered by Edmund Davies LJ, with whom Widgery and Lyell JJ agreed. His Lordship described the method, which counsel for the defence had sought to use to discredit the main prosecution witness, as having had ‘considerable antiquity’ in the law. He then summarised the position at common law as follows:

  1. A witness may be asked whether he has knowledge of the impugned witness’s general reputation for veracity and whether (from such knowledge) he would believe the impugned witness’s sworn testimony.
  2. The witness called to impeach the credibility of a previous witness may also express his individual opinion (based upon his personal knowledge) as to whether the latter is to be believed upon his oath and is not confined to giving evidence merely of general reputation.
  3. But whether his opinion as to the impugned witness’s credibility be based simply upon the latter’s general reputation for veracity or upon his personal knowledge, the witness cannot be permitted to indicate during his examination-in-chief the particular facts, circumstances or incidents which formed the basis of his opinion, although he may be cross-examined as to them.

This method of attacking a witness’s veracity, though ancient, is used with exceeding rarity. Nevertheless it was sought to be made use of in the present case …

It is clear from this discussion of the authorities that the common law rule that a witness can be called to attack the veracity of another witness, though rarely invoked in practice, is alive and well in England.

Before this Court, the Crown submitted that irrespective of the position in England, the rule is no longer to be regarded as part of the common law of Australia. This was a somewhat bold submission given that, in Bell v The Queen,[25] the Full Court of the Federal Court, as recently as 1985, expressly affirmed the continued existence of the rule.

In a joint judgment, Wilcox and Miles JJ (with whom Davies J relevantly agreed) referred specifically, and in some detail, to Richardson. Their Honours cited with approval the passage from the judgment of Edmund Davies LJ to which we have previously referred. They clearly endorsed his Lordship’s statement of the position at common law.

The position in Victoria is that the rule has been considered and applied. The same is true for New South Wales, where the rule has been applied comparatively recently. In R v Hanrahan, Manning J observed that it was ‘beyond doubt that evidence of the general reputation for veracity of a witness may still be given’. However, his Honour acknowledged that such evidence was rarely led in modern times. It is perhaps worth noting that Richardson is referred to in the joint judgment of McHugh, Gummow and Hayne JJ in Bull v R, although in a somewhat different context.

The Crown sought to deal with these authorities by referring to the criticisms that had been levelled at the rule by various commentators. It noted that the Australian Law Reform Commission, in one of its early reports on codification of the law of evidence, appeared to favour its abolition.[30] In addition, the rule has been described as ‘cumbersome, anomalous, and unconvincing’ by no less an authority than J D Heydon in Cross on Evidence.[31]

With great respect, so far as this Court is concerned, none of this can possibly matter. If the rule continues to exist as part of the common law, it is irrelevant that it has its critics. The appellant was entitled to be tried according to law. That is the law as it stands, not as some think it ought to be. Whether Ms Zubrycki’s evidence, had it been led, would have influenced the jury to reject the complainant’s account can never be known. However, in our view, the trial judge erred in excluding it.

R v BDX [2009] VSCA 28


Date: 09/01/2009