6.55The following discussion covers issues that have been raised by submitters in relation to the veracity provisions, and also revisits issues that were identified in the Law Commission’s 2008 report and 2010 advice to the Minister.
6.56The definition of veracity is critical as it determines whether the veracity provisions apply to a particular piece of evidence. Section 37(5) defines veracity as “the disposition of a person to refrain from lying, whether generally or in the proceeding”. One of the leading texts on the Evidence Act has suggested that the negative way in which this definition is cast becomes potentially confusing when it comes to making the enquiries required under s 37(3) to determine substantial helpfulness. This is particularly the case with s 37(2)(b). If the definition of veracity in s 37(5) is substituted for the term “veracity” in that paragraph, it asks the judge to determine whether the proposed evidence about veracity tends to show that the person whose veracity is in question has been convicted of one or more offences that “indicate a propensity for … lack of … a disposition to refrain from lying”.
6.57This potential confusion seems to stem from reading s 37(2)(b) as referring to offences indicating a propensity for dishonesty or a propensity for a lack of veracity as opposed to a propensity for dishonesty or a lack of veracity. Read the latter way, the paragraph does not present the same kind of potential for confusion.
6.58However, there does remain a substantial issue regarding the definition of veracity in s 37(5) and therefore the scope of the veracity provisions as a whole. This is the issue that emerged following the Court of Appeal decision in Tepu, which was discussed in the Law Commission’s 2010 advice to the Minister of Justice set out above.
The facts of R v T[epu] illustrate the difficulties the prosecution may have when seeking to offer veracity evidence about a defendant in the absence of a trigger under s 38. There will either need to be acceptance of an argument that the evidence falls outside the definition of veracity (on the basis of purpose or use), or adoption of the approach taken by the Court of Appeal [in Tepu]. There is no equivalent to s 43 with regard to veracity evidence, but general agreement that the Court reached the correct position in R v T[epu] (in spite of s 38(2)) may indicate the need to consider a provision that does not depend on the common law “tit for tat” approach.
Evidence of someone’s veracity may be helpfully thought of as a piece of evidence extraneous to the subject matter of the proceedings. The definition of veracity in s 37(5) of the Act may not make this entirely clear, stating that “veracity means the disposition of a person to refrain from lying, whether generally or in the proceeding”. However, the wording in s 38(2)(a) that states “by reference to matters other than the facts in issue” indicates more clearly that the type of evidence s 37 is intended to cover is narrowly constrained; the sort of material that at common law would have been within the scope of the collateral issues rule.
Investigation of the credibility of a person’s account of relevant facts, or the weight of their evidence, through cross-examination or otherwise, does not always raise concerns of time-wasting or distraction. What might be referred to as “direct proof of mendacity” (or “probative” credibility), that is, calling other people to contradict a witness’s account, should be contrasted with “indirect” proof; that is, suggesting that the witness is the kind of person that should not be believed (“moral credibility”).
The policy of ss 37 and 38 was not intended to limit the ability of prosecutors to ask defendants or other witnesses directly whether their evidence was truthful. The concern of ss 37 and 38 is with diverting trials into collateral issues. That concern did not arise in the present case.
The Court of Appeal correctly interpreted and applied the Act. Sections 37 and 38 are not intended to relate to that kind of questioning of veracity and are, instead, like the old collateral issues rule, intended to stop the introduction of material outside the scope of facts directly or indirectly in issue.
… the lies were not tendered for the purpose of attacking the witness’s veracity. Sections 37 and 38 played no part in the analysis, not because the lie was irrelevant to the defendant’s veracity, but because any such effect was merely subsidiary to the main purpose of admitting the evidence.
Approaching the matter in this way would effectively mirror the manner in which the Evidence Act treats propensity evidence that has another potential use. Section 40(4) provides that the propensity rules are inapplicable where the evidence – despite having some relevance regarding propensity – is “solely or mainly relevant to veracity”. In the same way, it is suggested that where the evidence is solely or mainly relevant to something other than the witness’s veracity, the rules governing veracity should be inapplicable.
6.67The problem with the scope of the veracity rules is not one of the evidence needing to be considered for admissibility under another set of rules that limit the use of such evidence. Rather, it is simply that the evidence is not of the type that requires application of special rules governing admissibility and its admissibility should be governed by the general rules in the Act.
6.69Commenting on the Tepu decision and the debate surrounding the Court’s approach in that case, the Law Commission noted in its 2010 advice that the evidence in dispute (evidence of a lie about the alleged offending at issue in the proceeding) would have been admissible under the common law and should continue to be admissible under the Act. We think an amendment to s 37(5) to put this beyond doubt is desirable.
R11 We recommend amending s 37(5) by deleting the words “whether generally or in the proceeding”, which would have the effect of making clear the distinction that was intended to be drawn by the Law Commission in relation to veracity evidence, namely, that there be “no rule that prevents a party from offering evidence contradicting or challenging a witness’s answers given in response to cross-examination directed solely to truthfulness ….”
First, it is questionable whether a Court should have regard to previous convictions for offences which indicate a propensity merely for “dishonesty” as opposed to “lack of veracity” (matters which are so distinguished in section 37(3)(b)). It is veracity that is in issue. If it is an offence of dishonesty, without bearing on veracity, why should it be accorded equal treatment? Indeed, given the empirical evidence, such as it is, some might say it should not be treated differently from other non-veracity convictions such as violence. It is to be expected courts will endeavour to read down “dishonesty” where there is no significant veracity element included, as has occurred in England, but the Courts should not be forced into attempting to ignore a stipulation which Parliament has imposed in this way. Specific amendment may be warranted.
6.75In the Law Commission’s view this might include “ordinary lies” told when the person is not under any legal obligation to tell the truth. At this point we consider that no amendment to s 37(3)(a) to include such “ordinary lies” is necessary. “Ordinary lies” are clearly not as damning in terms of veracity as lies told when under a legal obligation to tell the truth (and therefore are far less likely to be “substantially helpful”), but there is nothing to prevent a judge from taking account of them where the circumstances are such that the evidence reaches the “substantially helpful” threshold. However, it is less likely that evidence of ordinary lies will reach that level of helpfulness than evidence of lies told under a legal obligation.
6.76The Law Commission does, however, remain of the view that the inclusion of previous convictions for offences that indicate a propensity merely for “dishonesty” as opposed to “lack of veracity” in s 37(3)(b) is problematic.
… the person has been convicted of one or more offences, and the nature and number of the offences (convictions for some offences, such as perjury or fraud, may be more relevant to truthfulness than others, but the relevance of a previous conviction will also depend on the circumstances of the particular case).
6.78This was translated into a reference to “offences that indicate a propensity for dishonesty or lack of veracity”. We consider that this drafting should be amended to better reflect the relevance of previous convictions to veracity.
6.81For this reason, an amendment to s 37(3)(b) to remove the words “dishonesty or” is appropriate and we recommend accordingly. A simple reference to “offences that indicate a propensity for lack of veracity” does not impose any rules as to the categories of offence that might be considered (as a reference to dishonesty offences appears to do), but rather leaves it to the courts to determine whether the circumstances of the prior offending will be substantially helpful in assessing veracity in the present proceeding.
6.82We have considered whether s 37(3)(e) should be similarly amended as it refers to a motive on the part of the person to be “untruthful”, which is a different concept from that of “veracity” (as is “dishonesty”). However, the removal of the reference to “dishonesty” in s 37(3)(b) is recommended as the word “dishonesty” in that paragraph refers to particular types or a category of offences rather than being a reference to the concept of dishonesty generally. As the reference to “untruthful” in s 37(3)(e) does not seem to have caused any difficulties or confusion in practice, no recommendation is made in relation to that paragraph at this time.
R12 We recommend amending s 37(3)(b) to remove the words “dishonesty or” to leave the courts free to consider on the facts of individual cases whether the circumstances of prior offending really are substantially helpful in assessing veracity.
6.83Section 36 provides:
36 Application of subpart to evidence of veracity and propensity
It is difficult to construct an example where s 36(1) would apply in criminal proceedings. The first edition of this book suggested a perjury prosecution, but this view must now be questioned. The difficulty arises from s 37(5)’s definition of veracity as a person’s disposition to refrain from lying “whether generally or in the proceeding”. The focus of a perjury charge is the defendant’s truthfulness or otherwise on the particular occasion in question. In terms of s 36(1), the defendant’s disposition to refrain from lying generally (or in the proceeding) is not “one of the elements of the … (offence or perjury).” No example readily springs to mind of any other offence which contains such an element.
6.87We are not aware of any cases where s 36(1) has caused a problem and nor was it raised in any submissions the Law Commission received during this review. Even if the commentators are correct and s 36(1) does not apply to a perjury prosecution, this would not present a problem for the reason set out above. Accordingly, legislative amendment would not seem to be required at the present time.
6.88Section 38 provides:
38 Evidence of a defendant’s veracity
6.89The prosecution may only offer evidence about a defendant’s veracity in limited circumstances. A defendant will “open the door” to evidence about his or her veracity being offered by the prosecution when:
6.90When either of these things occurs, then the prosecution may offer evidence about the defendant’s veracity if the judge grants permission for it to do so. In this way, s 38(2) can be described as a “tit for tat” rule. This rule gives rise to a number of issues:
The Commission considers that different rules should apply when dealing with evidence that is solely or mainly relevant to the truthfulness of a defendant in a criminal proceeding (whether or not the defendant is a witness). Admissibility rules governing evidence of truthfulness (or propensity) should not admit unfairly prejudicial evidence that may undermine the protection the law traditionally gives defendants under the criminal justice system.
6.93Despite the emphasis on protection of defendants’ rights in the commentary, the provision that the Law Commission proposed was more liberal in terms of what the prosecution could do than the rule that was eventually enacted in s 38. Section 40(2) of the Evidence Code read:
The prosecution in a criminal proceeding may offer evidence about a defendant’s truthfulness, but cannot offer evidence that the defendant has committed, been charged with, or been convicted of an offence which is relevant to truthfulness (other than the offence for which the defendant is being tried) unless
6.96While the common law’s “tit for tat” approach might have operated effectively to discourage unnecessary or gratuitous attacks on witnesses, there is no obvious logical connection between the defendant’s veracity and a challenge to the veracity of another witness. Furthermore, there is also a serious question about whether the law of evidence is the appropriate place to be putting in place incentives in relation to the conduct of the criminal trial process.
6.97In light of these factors, there are three obvious options in relation to s 38(2):
6.98The strongest argument for no change is that, as far as the Law Commission is aware, there have not been difficulties with s 38 that are resulting in miscarriages of justice or manifest unfairness. However, as the Law Commission made clear in its 2010 advice to the Minister of Justice, despite the arguments about the reasoning applied by the Court of Appeal in the leading case of Tepu, it was comfortable with the result reached by the Court.
6.101If s 38(2) were repealed altogether, the alternative would be to simply rely on ss 7 and 8 in combination with s 37. This would obviously be a radical change in the sense that the law has long provided special protection against challenges to the veracity of a defendant in a criminal proceeding in comparison with the protections afforded to witnesses and other persons. This protection has been seen as operating as an incentive to defendants to consider any attack on the veracity of a prosecution witness very carefully.
6.103In the context of a review focused on the practical operation of the Act, we consider that it would be inappropriate to recommend a radical policy change in the absence of any identified problems with this section. Furthermore, we have recommended an amendment to s 37(5) that will have the effect of clarifying that the veracity rules are engaged in the manner originally envisaged by the Law Commission. This will in effect limit the scope of the rule in s 38(2)(a). This may be an issue that can be considered again in the future when the Law Commission’s proposed amendment to s 37(5) has had time to “bed in”.
The point is logical. The veracity of the defendant has come into issue. Evidence on the point becomes relevant accordingly. However, it might be thought a bizarre situation if the prosecution can engineer a right to lead evidence as to a defendant’s previous convictions going to veracity through the prosecution offering evidence itself, quite possibly against the defendant’s wishes, and especially when the defendant’s evidence in issue is un-sworn and open to discounting accordingly.
The preferable view, based on the cardinal principle of relevance, may be that the previous position survives, and the prosecution may not do so. However there remains a further question whether that is so when the defendant’s statement to police (if any) has been put in evidence by the prosecution. There are policy issues involved, and some dissatisfaction. It is desirable the obscurity be clarified.
R13 We recommend amending s 38 to clarify that the defendant only “opens the door” to evidence about his or her veracity being introduced by the prosecution when he or she gives evidence in court.
… the prosecution is absolutely prohibited from suggesting that the defendant is lying when the defendant gives evidence of his or her innocence. In view of s 4’s definition of “offer evidence”, this prohibition on the prosecution offering evidence of the defendant’s veracity will cover the process of cross-examination of the defendant as well.
The surprising result of the argument … is that in a case where the defendant gets into the witness box and gives evidence of his or her innocence, but not about his or her veracity, the prosecution is prevented from cross-examining the defendant by such traditional means …
6.110This potential issue does seem to have been dispelled by the approach taken to the veracity provisions by the Court of Appeal and the Supreme Court in the Weatherston appeals, as discussed above.
6.111Furthermore, the Law Commission’s proposed amendment to s 37(5) would seem to put the matter beyond doubt. Accordingly, no amendment to s 38 is required in this regard.