Unformatted text preview: TOPIC 3 – ADMISSIBILITY AND RELEVANCE & JUDICIAL
ADMISSIBILITY AND RELVANCE
▪ ▪ ▪
▪ ▪ ▪ ▪ INTRODUCTION
“Admissibility” the admissibility of evidence refers to the question whether an item of
evidence will be permitted to go before the jury (i.e. will it constitute part of the evidence
that the jury (or trier of fact) may rely on in coming to its decision)
“Relevance” The goal of finding the truth rationally requires that only evidence having a
bearing on the issues be considered in the process of reaching a decisions – all irrelevant
material should be excluded from that process – Principle reflected under s56 Uniform
Evidence Act 1995
s 56 is the threshold rule of admissibility
s 56 of the Uniform Evidence Act (UEA) is both:
▪ i.e. it includes evidence
▪ i.e. it excludes evidence
It is the only rule of admissibility in Ch 3 that operates in this inclusionary way as the
remaining rules are mostly “exclusionary”.
The evidence is admitted ultimately because it is “relevant” and not excluded RELEVANCE AND ADMISSIBILITY
“Rules of admissibility”
o The rules of admissibility are governed under Chapter 3 of the Act (UEA)
WHAT DO YOU ASK FIRST TO DETERMINE WHETHER EVIDENCE IS ADMISSIBLE?
o Question The first question to ask is whether the evidence is relevant?
o NO if not then it is excluded/inadmissible
o YES if it is then it will be admissible unless one of the exclusionary rules in Ch 3
▪ I.e. the rule against hearsay evidence (s59) or opinion evidence (s76).
Some of the rule of admissibility operate as exceptions to the exclusionary rules
o E.g. hearsay evidence is generally excluded (even though it’s relevant) because it
is generally considered to be unreliable.
The rules of admissibility mean that only relevant evidence should be taken into
consideration in the decision.
o However they also mean that much relevant evidence will be excluded as it is
unreliable in some way.
It is not clear whether the exclusionary rules (including s56) only apply where there is an
objection by a party to the admission of evidence, or if they apply in absolute terms.
o Relevant authority Commissioner of taxation v SNF (Australia) Pty Ltd ▪ Commissioner of taxation v SNF (Australia) Pty Ltd
o Inadmissible hearsay, even when admitted continues to have no value
o A hearsay letter, once placed in evidence, is a legitimate source of probative
o The word ‘not admissible’ in the UEA means ‘not admissible over objection’. ▪ Thus the view is taken that “not admissible” under the UEA means “not admissible over
o NOTE these observations are made in the context of the hearsay rule however
the same rationale applies in the context of other exclusionary rules such as
relevance. ▪ ▪ RELEVANCE
DEFINITION The Act defines “relevant evidence” in s55.
o s55 UEA
1. Relevant evidence in a proceeding is evidence that if it is accepted, it could
rationally affect (directly or indirectly) the assessment of the probability of
the existence of a fact in issue in the proceeding.
2. Evidence is not taken to be irrelevant only because it relates only to:
a) credibility of a witness or;
b) the admissibility of other evidence; or
c) a failure to adduce evidence.
o I.e. evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.
o Definition requires the minimal logical connection between the evidence and the
facts in issue.
o Whether logical or rational connection exists is an objective test grounded in human
o Does not need to make a fact ‘probable’, just more or less probable than it would be
without the evidence.
o Indirect connection is sufficient (e.g. defendant expressed intention to kill victim)
The definition accords with the ordinary concept of relevance
o I.e. evidence is relevant if it has some rational connection to a fact in issue in the
sense that it could increase or decrease the probability of that fact’s existence. Facts in issue
▪ What are facts in issue? Distinguish between these two:
o Ultimate facts in issue
▪ Determined by the cause of action and pleadings, or the elements of a
▪ Example the ultimate facts in issue in a murder trial are defined by the
elements of murder:
• Actus reus whether the accused did the act that caused the
death of the deceased
• Mens rea whether the accused did that act with the requisite
mental element (i.e. requisite intention to kill) o ▪ ▪ ▪ Other facts in issue
▪ Other facts that are relevant to the ultimate facts in issue.
Not all ultimate facts will necessary be “in issue” in a given case because they might be
o E.g. The accused might admit to having killed the deceased – but deny having
requisite intention (mens rea)
▪ Fact in issue the state of mind pf the accused at the time of the killing
will be the only ‘fact in issue’ in this case.
o E.g. The accused might not admit to having caused the death of the deceased at
▪ Ultimate fact in issue this will be whether the accused did the killing as
well as whether he/she had the requisite intent.
o Fact relevant to these issues might be things such as whether the accused was
resent at the killing (thus had opportunity) or whether any particular actions of the
accused had any casual relation to the death of the deceased.
▪ Facts relevant to these issue might be whether the accused had access to,
or came in contact with, the murder weapon, or whether a particular act
(e.g. punching the deceased) was in fact the cause of death.
• Facts relevant to this is whether the deceased had a pre-existing
condition such where a punch that might have been inflicted had no
bearing on the death. o Facts relevant to the requisite intention of the accused
▪ The relationship between the accused and the deceased or;
▪ Events leading up to the killing
▪ The presence of a motive or;
▪ The level of force that was used Section 55(2) makes it clear that – where evidence relates only to the credibility
(believability) of a witness, the admissibility of other evidence or the failure to adduce
evidence – the evidence may nevertheless be considered relevant to a fact in issue.
These are examples of evidence that are indirectly relevant to a fact in issue but relevant
o CREDIBILITY EXAMPLE if a witness to a car accident is called to give evidence
about the colour of the traffic light when the collision occurred, evidence of his/her
inability to have seen the traffic light as he/she was not wearing their glasses will be
relevant to his/her credibility.
o RELAIBILITY EXAMPLE evidence about threats or violence made towards an
accused at the time of his/her confession to the offence. This evidence is not
relevant directly to the fact is issue but it will be relevant to the reliability and
admissibility of the confession and the ultimate issue as to whether the accused
committed the crime. Logical relevance (rationality)
▪ TEST FOR RELEVANCE The threshold test for relevance in the Act is based on a logical
test, that is whether there is a logical connection between the evidence and a fact in issue–
Papakosmas v R Papakosmas v R
▪ Defendant charged with rape
▪ Issue was not whether sex took place, but whether there was consent.
▪ Issues was whether the complaint that ‘P raped me’ made to Ms Ovadia, Ms Stephens and
Ms Fahey, almost immediately after the time the complainant said the rape occurred, was
▪ Potentially relevant for two purposes:
o Its hearsay purpose (to prove defendant raped the complainant)
o And its non-hearsay purpose (as prior consistent statement that supported the
credibility of the complainant as a witness)
▪ Defendant did not dispute it was relevant to credibility.
▪ He argued it was not relevant to prove truth of facts asserted.
▪ In assessing relevance the judge assumes that the evidence is reliable – at 81
Gleeson CJ and Hayne J
▪ The evidence of the three witnesses Stephens, Fahey and Ovadia was relevant for both
purposes – at 30
▪ Discussed historical rule complainant evidence not admissible to prove truth of facts
asserted (here to prove rape occurred). But this was not because it was considered
irrelevant. It was because of the common law hearsay rule.
▪ Evidence relevant for hearsay purpose:
o Although in general, you do have to be cautious about risk of fabrication. Fact that
an untrue complaint is repeated does not make it any less untrue.
o In this case, it is impossible to deny that the evidence of the complaints made to
the three witnesses in question could be regarded by the jury as affecting their
assessment of the probability that there was not consent to intercourse.
Gaudron and Kirby JJ
▪ Explained defendants argument – if evidence had no probative value beyond what it
would at common law – could prove no more than that the complaints were made and
could only be used to rebut an inference that might otherwise be drawn as to
complainant’s credit (i.e. if she had not complained at all, it might be inferred that she is
making it up now). They rejected this argument.
▪ There are circumstances in which a statement is made that might render it probative of
the facts asserted. This was recognized even at common law.
▪ Depends upon the nature and degree of connection between making of statement and
▪ More likely to be probative of facts asserted if there is close connection between
statement and fact in issue.
▪ Has to be something more than the mere making of the statement – anyone can make
false accusations – has to be something about the circumstances that makes it probative
of facts asserted.
▪ In the present case, the statements to the three witnesses were closely contemporaneous
with the events alleged by the complainant and were of a kind that might ordinarily be expected if those events occurred. That being so, they rationally bear on th probability of
the occurrence of those events and , thus, were admissible as evidence of the facts
asserted in them – at 59
▪ Evans v The Queen
o Observing how the accused walked or how he spoke certain words would be
relevant to the identification of the accused as the person seen and heard by the
witnesses, but dressing the accused in the clothing worn by the person seen by the
witnesses have no assistance to the jury in determining whether he was the person
seen by the witnesses – at para  Evans v The Queen
▪ Security cameras showed armed men wearing overalls, sunglasses, balaclava robbing
persons of money.
▪ Similar overalls and balaclava found at defendants house
▪ Required to wear overalls and balaclava, as well as par of sunglasses similar to that in the
footage, in front of the jury, for purpose of comparing his appearance with the person in
▪ Also asked to speak words “give me the serious cash” and walk around in front of the jury
▪ Objected to by defence – on basis it was unfair to dress him up as a robber.
▪ But did not raise relevance.
▪ One issue was whether the evidence was admissible under s53
▪ Another issue was whether it was relevant.
▪ Was the evidence of the accused putting on the balaclava and sunglasses relevant?
▪ Was the evidence of saying “give me the serious cash” relevant?
▪ Was the evidence of the accused walking in the overalls relevant?
Heydon J (Crennan J agreeing)
▪ Relevance of balaclava – defendant argued because it was not asserted to be the
balaclava worn by the offender it was irrelevant.
▪ Judges disagreed. If attired in balaclava he had looked very different to description given
by eyewitnesses that would have been material capable of raising a reasonable doubt. If
he had looked similar it would, taken with other evidence, have been capable of
supporting a conclusion of identity.
▪ Relevance does not depend on its capacity by itself to prove prosecution’s case on
particular issue or raise reasonable doubt – effect must be assessed with other evidence
admitted by the time the evidence is tendered, or to be called.
▪ What he said also relevant
▪ Wearing overalls also relevant
Gummow and Hayne JJ
▪ Showing the jury what the D looked like when wearing balaclava anf overalls that were in
evidence could not rationally affect the assessment of the probability of the existene of a
facts in issue.
▪ The central issue was whether he was the robber.
▪ There was no dispute there was a robbery or that the robber had been wearing a
balaclava, overalls and sunglasses. ▪
▪ No one asserted that the person wearing these items could be identified by looking at the
person during the robbery or by looking at the security footage.
None of the witnesses said that they could recognise the man who was thus attired.
Looking at the appellant wearing the balaclava and overalls enabled a comparison
between no more than the items that he put on and what was depicted in the footage.
That could be drawn without asking him to put them on.
Dressing the appellant in the items provided the jury with no more information.
Deciding who had worn the disguise was not assisted by having the appellant put on the
Asking him to walk and talk is a different matter – observing how appellant walked and
how he spoke certain words might bear upon jury’s decision whether he was the man the
witnesses described. Kirby J
▪ Evidence was relevant
▪ Test of relevance is a broad one. This is compatible with the purpose of the Act which is to
aid in the court process, rather than to delay or needlessly complicate the resolution of
▪ What is relevant is much more likely to be perceived by the judge at trial, than by the
ultimate national court concluding for the first time for itself than an issue which
everyone considered to be relevant is irrelevant.
▪ Relevant to whether he was the offender was whether, when dressed in overalls and a
balaclava, when walking in front of the jury, and when saying the words ascribed to the
offender, there were apparent similarities.
▪ Dangerous, unfair, humiliating and prejudicial – but irrelevant, NO
▪ Went on to conclude it was unfairly prejudicial under s137 ▪ Concept of relevance at common law it requires the evidence to be “legally” or
“sufficiently” relevant, rather than merely logically relevant. ▪ s55 and 135 read in conjunction The combined operation of s55 and the discretionary
exclusion in s135 achieves a similar but not identical result to that at common law.
o The ALRC intended that s55 be read in conjunction with the discretion in s135. It
proposed that relevance be dealt with “by two provisions:
▪ One defining relevance in terms of being capable of affecting the
assessment of the probabilities and
▪ The other spelling out in a judicial discretion the policy considerations,
presently concealed, which lie behind any decision on the relevance of
evidence. ▪ The common law notion of relevance is based party on pragmatism: the court would be
unduly weighed down and delayed, and the jury would potentially be distracted, if all
evidence that might have only the slightest bearing on an issue were to be admitted – R v
Stephenson R v Stephenson
▪ Mr Stephenson drove through an intersection, colliding with another car (a Fiat) which
was coming from the opposite direction and which was attempting to make a right-hand
turn at the intersection.
▪ Three of the four occupants of the Fiat were killed in the collision.
▪ Mr Stephenson was convicted at trial of culpable driving.
▪ It was the Crowns case that he had caused the collision by speeding through a red light
▪ At the trial, Mr Stephenson had sought to adduce evidence of the blood alcohol readings
of the four occupants of the Fiat.
▪ The trial judge excluded the evidence on the ground that it was not relevant.
▪ Stephenson appealed but was unsuccessful
▪ The Full Court of the Supreme Court of Victoria held:
o Although logic is the test of relevance, not all evidence which is logically relevant
is legally admissible. The logical connection between a fact and the issue to be
determined may be so slight that the fact is treated as too remote and evidence
of it is inadmissible. In some cases, such evidence is described as being irrelevant,
an expression which must be taken to indicate that its weight is so minimal that it
does not serve to add to or detract from the probability of the principle issue
being established. Such evidence may be more correctly described as
insufficiently relevant or too remotely relevant.
▪ Why was the evidence insufficiently relevant in this case?
o REASONING Firstly, the condition of the driver of the Fiat was unknown and
could not be established. Even if it could be shown that all occupants of the Fiat
had been drinking, would that not be relevant? Possibly, but only if there could be
shown some connection between the state of sobriety of the driver and the
behaviour of the Fiat. Although the movement of the Fiat was a matter of
relevance, there was very little evidence about this, and none to suggest the Fiat
had been in the wrong position on the road, or that it had been having
inappropriately. Therefore the connection between the condition of the
occupants of the car and a fact in issue was so tenuous as to be virtually
The same result would possibly be achieved if the case was heard today.
The evidence would arguably satisfy the test in s 55 – the condition of the occupants is
logically relevant to whether the Fiat might have contributed to the accident.
o However the evidence would likely be excluded under the discretion in s135. ▪ s135 Uniform Evidence Act 1995 – General discretion to exclude evidence
o The court may refuse to admit evidence if its probative value (something important
in a trial) is substantially outweighed by the danger that the evidence might:
▪ be unfairly prejudicial to a party;
▪ misleading or confusing; or
▪ Undue waste of time. ▪ The probative value of the evidence in R v Stephenson:
o It would be unfairly prejudicial to a party, because it might be used by the jury “in an
unacceptable way, for example by provoking some irrational, emotional or illogical
response, or by giving it more weight than it truly deserves”
o A jury who heard that any of the occupants of the Fiat had been drinking, perhaps
while drinking, might reason prejudicially, ignoring the remoteness of that evidence
to the fact in issue.
o The evidence would be potentially misleading or confusing and could well have
resulted in an undue waste of time. ▪ R v Stephenson may be compared with R v Fieldman – another case concerning the
relevance of the behaviour of the deceased prior to a motor vehicle accident in which the
deceased died. R v Fieldman
▪ The accused had been charged with culpable driving, causing the death of Mr
▪ The accident occurred when the accused noticed that his motorbike had been stolen and
heard the sound of the bike travelling along the highway near his property.
▪ He pursued the bike in his station wagon and ultimately collided into the back of the trail
bike – then being ridden by the deceased.
▪ The accused had told police in his record of interview that almost immediately before the
impact, the deceased had slowed down or stopped – as if he intended to turn left onto a
track in order to escape.
▪ The evidence showed that there was such a track in this area of the road.
▪ It was the accused’s case that the dramatic slowing down by the deceased on the bike
caused the accident.
▪ The issue was whether the deceased’s fairly extensive criminal record, which included
motorbike theft, was relevant to any fact in issue.
▪ The defence argued that the prior convictions were relevant to the manner in which the
deceased had been driving the motorbike almost immediately before the moment of
Justice Kaye discussed the operation of s55 and 135 in the following judgements:
▪ The issue whether the decease...
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- Three '19
- Evidence law