1.6 – Assessing Witnesses

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  1. It is for the jury, who have seen and heard the witnesses, to decide whether they accept their evidence. They are free to accept or reject the whole of a witness’s evidence, or to accept some of the evidence and reject the rest (Cubillo v Commonwealth (2000) 174 ALR 97; Flint v Lowe (1995) 22 MVR 1; S v M (1984) 36 SASR 316).
  2. It is therefore customary to direct a jury that they are not bound to believe the evidence of any witness, and that they are not bound to believe the whole of the evidence of any witness. They should be told that they may accept some parts of a witness’s evidence, but not other parts (Cubillo v Commonwealth 174 ALR 97; Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155).
  3. The jury should also be directed that it is their duty to keep an open mind about the truthfulness of any individual witness, and about the accuracy of that witness’s recollection, until all the evidence has been presented. It is only once they have heard all of the evidence that it will be possible for them to assess to what extent, if any, that witness's evidence has been confirmed, explained or contradicted by the evidence of other witnesses. Only then should they direct their minds to the question of whether the guilt of the accused has been proved beyond reasonable doubt (Haw Tua Tau v Public Prosecutor [1982] AC 136).
  4. Where a witness was intoxicated at the time of the event about which he or she is giving evidence, it may be appropriate to direct the jury that the reliability of his or her evidence may be affected (see, e.g., O’Leary v Daire (1984) 13 A Crim R 404; Bedi v R (1993) 61 SASR 269; R v Mathe [2003] VSCA 165; R v Baltensberger (2004) 90 SASR 129; R v MC [2009] VSCA 122).[1]
  5. The judge, prosecutor or defence counsel must not suggest in any way to the jury that an interest in the outcome of the trial is a factor to take into account in assessing the evidence of witnesses generally (Jury Directions Act 2015 s44H, as amended in 2017).
  6. This is because the jury will likely conclude that the accused has the greatest interest, and so the direction may have the effect of undermining the presumption of innocence (Robinson v R (No 2) (1991) 180 CLR 531; R v McMahon (2004) 8 VR 101; Hargraves & Stoten v R (2011) 245 CLR 257; Department of Justice and Regulation, Jury Directions: A Jury-Centric Approach Part 2, 2017, 11-14).
  7. Suggestions that a witness has a particular interest in the outcome of a trial are permitted. For information on directions about assessing the evidence of an accused, see The Accused as a Witness.
  8. It is undesirable to suggest that a conviction or acquittal will reflect favourably or unfavourably on the credit of a witness, or have some other effect on them (R v Coulston [1997] 2 VR 446).
  9. The jury should not be told that witnesses must be presumed to be innocent. The presumption of innocence is only relevant to the accused (Howe v R (1980) 32 ALR 478).

    Notes

[1] See Common Law Intoxication for information about other directions that may be necessary in cases involving intoxication.

Last updated: 2 October 2017

In This Section

1.6.1 – Charge: Assessing Witnesses

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.1 – Investigations into Unfitness to Stand Trial

10.2 – Special Hearings