LAWS13010 Evidence and Proof
Topic 2 – The Paramount Rules:
Relevance and Admissibility
Learning Objectives
At the end of this topic, you should be able to:
•
Explain the meaning of “relevance” in Evidence Law and how
it is applied in proceedings;
•
Describe those forms of Evidence which need not satisfy the
Relevance test;
•
Describe how the rules of Admissibility apply as an
exclusionary test;
•
Explain the judicial discretion to exclude evidence in criminal
trials;
•
Outline, in general terms, the purpose and rules of a voir dire.
Review and context
Where the relevance rule fits
Is the evidence relevant?
Is the evidence caught by some
rule of exclusion?
Should the court exclude the
evidence in its discretion?
If admissible, what weight should
the court put on the evidence?
What is relevance?
So what does “Relevance” mean?
Evidence is relevant where:
 alone, or in conjunction with other facts;

and having regard to the common course of events;

it tends to prove;

a fact in issue.
Re Van Beelen (1974) 9 SASR 163, 193
Relevance: Uniform Evidence Act
Section 56: Relevant evidence is admissible
unless otherwise excluded; evidence not
relevant is inadmissible.
Section 55: Evidence is relevant “if could
rationally affect (directly or indirectly) the
assessment of the probability of the existence of
a fact in issue in the proceeding.”
The Relevance Rule
What is relevant is to be received and weighed, unless
some special rule demands that it should be excluded.
What is not relevant is to be rejected.
Re Van Beelen
The rationale for the relevance
rule
Rationale for the relevance rule
Keep everyone
focussed on the
important issues
Economy:
conserve
resources of
the court and
the parties
Avoid
distractions
with potential
to prejudice
What are the limits of relevance?
Smith v The Queen
“Because the witness's assertion of identity was
founded on material no different from the
material available to the jury from its own
observation, the witness's assertion that he
recognised the appellant is not evidence that
could rationally affect the assessment by the
jury of the question [of identity].”
Per Gleeson CJ, Gaudron, Gummow, Hayne JJ at (2001) 206 CLR 650 at 655.
R v Stephenson
“Although logic is the test of relevance, not all evidence
which is logically relevant is also 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 as inadmissible. In some
cases, such evidence is described as being irrelevant…
Such evidence may be more correctly described as
insufficiently relevant or too remotely relevant.”
[1976] VR 376 at 379-380.
Relevance is a relative concept
Relevance is not a fixed concept – it can only be
expressed in general terms as “a relationship which
exists between two facts.” (Field, para 1.14)
Compare the facts of R v Buchanan [1966] VR 9 and R v
Horvath [1972] VR 533: context is everything when
determining whether a fact is relevant
How high is the bar?
To be admissible, evidence need not be persuasive or
compelling. Unpersuasive evidence is still evidence – so
the bar is quite low!
However there remains a point
at which the logical connection
is so tenuous that it is not
regarded as relevant at law.
R v Stephenson
Indirect or Circumstantial Relevance
Indirect, or circumstantial relevance, does not
directly tend to show that a fact in issue is more
or less likely; it may assist the court to assess
other evidence.
Example: Evidence relating to an ongoing
relationship with a child, where only one incident
is charged.
See HML v The Queen (2008) 235 CLR 334
When can a court make a finding
of fact without evidence?
Prescribed Evidence
Some evidence is prescribed by
statute. In these cases, Relevance
is not considered.
Example: Transport Operations
(Road Use Management) Act 1995
s.124(1)(e) relating to proof of
ownership of a motor vehicle.
Presumptions
Sometimes, the law makes presumptions of fact.
These facts don't need to be proved by evidence
at all.
Example: Succession Act 1981: Presumption as
to Survivorship.
Judicial Notice
Some facts are so notorious that they are
indisputable and need not be proven. The test is
whether “every ordinary person may reasonably be
presumed to be aware of it.”
Holland v Jones
Example: Cats are kept as
domestic pets.
Nye v Niblett
I personally guarantee this is the stupidest picture you will see
on a powerpoint slide this semester. But I just couldn't resist.
Fitting this into the bigger
picture of evidence law
Admissibility
Not all relevant information is suitable to be
considered by the court.
Our law already, and for good reason, undoubtedly
excludes evidence of many matters which anyone in
his own daily affairs of moments would regard as
important in coming to a decision.
R v Bond
An Exclusionary Process
The rules of evidence exist to exclude evidence
which is relevant but which is, for one reason or
another, unsafe for use in a trial.
They do not include or endorse forms of evidence,
which would be the other logical approach.
Rationale for exclusion
Because the evidence is inherently unreliable
Because the evidence would be likely
to mislead rather than inform
Because public policy demands that the
evidence be excluded
Judicial discretion in criminal
cases
Judicial discretion
Judges have an inherent duty (and power) to run a fair
trial, resulting in a just outcome.
This duty is particularly strong in criminal cases.
During the 20th century in particular, judges have used
that discretionary power to exclude evidence which did
not fall foul of any admissibility rule, yet which would still
tend to reduce the fairness of a trial.
In the Uniform Evidence Act jurisdictions, the judicial
discretions now have statutory expression.
Judicial discretion : Unfair Prejudice
Evidence is prejudicial if it might lead the jury to form
unfair views about the accused person's guilt.
The classic example is an accused person who has
been convicted of similar crimes in the past.
In exercising this discretion, the
Judge should consider whether the
probative value of the evidence
outweighs its prejudicial effect
R v Swaffield (1998) 192 CLR 159
Pfennig v R (1995) 182 CLR 461
Judicial discretion : Unfair Evidence
A judge has a discretion to exclude evidence if, in all the
circumstances, its use would be unfair to the accused.
This discretion is often called into play in relation to
confessions given in police custody.
McDermott v R
Cleland v R
Discretion : Evidence Obtained Unlawfully
What would the world be like if unlawfully obtained
evidence was admissible? If authorities could commit
offences to obtain evidence, knowing it is unlikely they
could ever be prosecuted?
A discretion exists to exclude
evidence which is the
direct or indirect result of
illegality or impropriety.
But always remember: it is a
Discretion! Nothing is
automatic!
Bunning v Cross
Admissibility Rules Under Attack?
RULES OF EVIDENCE
DO NOT APPLY!
The voir dire
Voir Dire
In a trial, the Judge decides whether evidence is
admissible, and then the jury decides how much weight
they will give to each piece of evidence.
What if the judge, in order to determine whether certain
evidence is admissible, has to actually hear that
evidence? If that happens, isn't the damage already
done?
A voir dire is a “trial within a trial” to determine whether
evidence is admissible or not.
Doe d Jenkins et al v Davies et al
Voir Dire – Exclusion of the Jury
It is not mandatory to exclude the jury from a voir dire,
however it is usually a very good idea.
For this reason they are often undertaken before the jury
is even empanelled.
If for instance, a judge reviews evidence during a voir
dire with the jury present and excludes it for being
unduly prejudicial, isn't the damage already done?
Demirok v R
Voir Dire – What Standard of Proof?
The burden of proof and the standard of proof switches
from issue to issue during a voir dire.
In some cases, the burden will be on the party tendering
the evidence; in other cases, it will be on the party
challenging the evidence.
Depending on circumstances, the criminal, civil, or
evidential standards or proof may apply.
For this course, all you need know is that there is no
simple rule.
Review
In this topic, you have learned:
•
the central role of relevance in the law of evidence;
•
the forms of evidence where the relevance test does not
apply;
•
the role of the exclusionary rules of admissibility
•
the three forms of judicial discretion to exclude evidence; and
•
the basic form and functions of the voir dire.