DANIEL TYNAN – 12th Floor Wentworth Chambers
EVIDENCE - RELEVANCE
CLASS 5
16 JUNE 2014
Today
• Relevance
• Discretions to exclude evidence
• Admissibility of evidence
– Chapter 3
Is the evidence relevent? (See Part 3.1)
Yes
Does the hearsay rule apply? (See Part 3.2.
See also Part 3.4 on admissions and Part 3.8
on character evidence.)
No
Yes
No
Does the opinion rule apply? (See Part 3.3.
See also Part 3.4 on admissions and Part 3.8
on character evidence.)
Yes
No
Does the evidence contravene the rule about
evidence of judgments and convictions? (See
Part 3.5)
Yes
No
Does the tendency rule or the coincidence rule
apply? (See Part 3.6. See also Part 3.8 on
character evidence.)
Y
e
s
No
Does the credibility rule apply? (See Part 3.7.
See also Part 3.8 on character evidence.)
Yes
No
Does the evidence contravene the rules about
identification evidence? (See Part 3.9.)
Yes
No
Does a privilege apply? (See Part 3.10.)
No
Should a discretion to exclude the evidence be
exercised? (See Part 3.11.)
No
THE EVIDENCE IS ADMISSIBLE
THE
EVIDENCE IS
NOT
ADMISSIBLE
Yes
Yes
Section 55 – Definition of
relevance
(1)
(2)
The evidence that is relevant in a proceeding
is evidence that, if it were accepted, could
rationally affect (directly or indirectly) the
assessment of the probability of the
existence of a fact in issue in the proceeding.
In particular, evidence is not taken to be
irrelevant only because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.
Section 56 – key provision
(1) Except as otherwise provided by
this Act, evidence that is relevant in a
proceeding is admissible in the
proceeding.
(2) Evidence that is not relevant in the
proceeding is not admissible.
Relevant to a “fact in issue”
• In civil proceedings?
• In criminal proceedings?
Example of the importance of
defining relevance
Smith v The Queen (2001) HC
• What was the evidence the subject of the
appeal?
Gleeson CJ, Gaudron, Gummow and
Hayne JJ at [8]
“ …question for the jury was whether they
were satisfied, to the requisite standard,
that the person then standing trial before
them is shown in those photographs.”
Could the police officer’s evidence assist
the jury to determine this question?
At [11]
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 we have identified. The fact that someone else has
reached a conclusion about the identity of the accused and
the person in the picture does not provide any logical basis
for affecting the jury's assessment of the probability of the
existence of that fact when the conclusion is based only on
material that is not different in any substantial way from
what is available to the jury.
McHugh J in Papakosmas
(1999) HC
• In assessing relevance the judge assumes
that the evidence is reliable – [81]
– Approved in Adam v The Queen at [22] (p 397
of KOP)
Admission and use of evidence
• Multiple purposes for use of evidence –
• Relevance
- example of complaint evidence in
Papakosmas v The Queen
• Complainant said “I was raped”
Evans v R (2007)
• 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?
Provisional relevance
Where evidence is relevant in combination
with other evidence, the judge may receive
the evidence conditionally upon the
assurance of the party that the other
information will be properly tendered.
Section 57
(1)
(2)
If the determination of the question whether evidence adduced
by a party is relevant depends on the court making another
finding (including a finding that the evidence is what the party
claims it to be), the court may find that the evidence is relevant:
(a)
if it is reasonably open to make that finding; or
(b)
subject to further evidence being admitted at a later
stage of the proceeding that will make it reasonably
open to make that finding.
Without limiting subsection (1), if the relevance of evidence of
an act done by a person depends on the court making a finding
that the person and one or more other persons had, or were
acting in furtherance of, a common purpose (whether to effect an
unlawful conspiracy or otherwise), the court may use the evidence
itself in determining whether the common purpose
existed.
Purpose of section 57
" [T]he Evidence Act should be approached in a
purposive manner to aid the court process and not to
delay it. The only construction which fulfils this
purpose is to hold that evidence is relevant if it appears
to the court to be relevant at the time it is tendered. If it
were necessary to have a voir dire examination to
examine the objective facts underlying relevance each
time an objection arose, trials would never finish".
- per Young J in Nodnara Pty Ltd v Deputy
Commissioner of Taxation (1997) 140 FLR 336 (NSW
SC)
Section 58
(1)
(2)
If a question arises as to the relevance
of a document or thing, the court may
examine it and may draw any
reasonable inference from it, including
an inference as to its authenticity or
identity.
Subsection (1) does not limit the
matters from which inferences may
properly be drawn.
Discretionary exclusion and
limits on the use of evidence
Introduction
• What is discretion?
• What is discretionary exclusion of
evidence?
• Discretion developed in common law –
Christie v R [1914] AC 545
Is the evidence relevent? (See Part 3.1)
Yes
Does the hearsay rule apply? (See Part 3.2.
See also Part 3.4 on admissions and Part 3.8
on character evidence.)
No
Yes
No
Does the opinion rule apply? (See Part 3.3.
See also Part 3.4 on admissions and Part 3.8
on character evidence.)
Yes
No
Does the evidence contravene the rule about
evidence of judgments and convictions? (See
Part 3.5)
Yes
No
Does the tendency rule or the coincidence rule
apply? (See Part 3.6. See also Part 3.8 on
character evidence.)
Y
e
s
No
Does the credibility rule apply? (See Part 3.7.
See also Part 3.8 on character evidence.)
Yes
No
Does the evidence contravene the rules about
identification evidence? (See Part 3.9.)
Yes
No
Does a privilege apply? (See Part 3.10.)
No
Should a discretion to exclude the evidence be
exercised? (See Part 3.11.)
No
THE EVIDENCE IS ADMISSIBLE
THE
EVIDENCE IS
NOT
ADMISSIBLE
Yes
Yes
Discretions to exclude
-
135
137
138
90
136
Section 135 – General discretion to exclude
evidence
The court may refuse to admit
evidence if its probative value is
substantially outweighed by the danger
that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of
time.
Section 137
Exclusion of prejudicial evidence in
criminal proceedings
In a criminal proceeding, the court must
refuse to admit evidence adduced by the
prosecutor if its probative value is
outweighed by the danger of unfair
prejudice to the defendant.
ss 135, 136, 137, 138 and 90
• Do these sections apply in civil or
criminal cases, or both?
• What are the important terms in these
sections ?
• Who can use these sections?
• How does the judge apply the sections?
Definition of “probative value”
"the extent to which the evidence
could rationally affect the
assessment of the probability of the
existence of a fact in issue".
Probative value
• Relevance is defined in s 55 as
“evidence that, if it were accepted, could rationally
affect (directly or indirectly) the assessment of the
probability of the existence of a fact in issue in the
proceeding.”
• Probative value is defined in the Dictionary as:
“the extent to which the evidence could rationally affect
the assessment of the probability of the existence of a
fact in issue.”
Differences
• PV is a matter of degree
• No explicit requirement in the definition of
PV that crt assume evidence will be
accepted.
McHugh J in Papakosmas
(1999) HC
• In assessing relevance the judge assumes
that the evidence is reliable – [81]
– Approved in Adam v The Queen at [22]
• In assessing “probative value” the judge
takes into account reliability – [86]
Gaudron J in Adam
– Gaudron J in Adam did not agree with
McHugh J’s view about the significance
of the words ‘if it were accepted” – [5960]
Other cases…
• Chief Justice in Shamouil (2006) approved
of Gaudron J’s comments in Adam.
– Significance of “could” – see [61].
• This was applied in Sood [2007] NSWCCA
214 – application for special leave to HC
refused.
Aytugrul v The Queen [2012]
HCA 15
The expert who did the DNA testing (Gina Pineda)
gave evidence that to the effect that one in 1,600
people in the general population (which is to say the
whole world) would be expected to share the DNA
profile that was found in the hair (a frequency ratio)
and that 99.9 per cent of people would not be
expected to have a DNA profile matching that of the
hair (an exclusion percentage).
Unfair prejudice
Some examples
• Evidence that is admitted for one purpose
yet has another unfair use.
• Evidence which permits the jury to adopt an
illegitimate form of reasoning.
• Unfair prejudice could result from the jury
giving undue weight to evidence.
• Unfair prejudice may arise from procedural
considerations.
ALRC 26, vol 1, para 644
• The ALRC explained what it meant by the term (The risk
of unfair prejudice is one of the potential disadvantages
mentioned. By risk of unfair prejudice is meant the danger
that the fact-finder may use the evidence to make a
decision on an improper, perhaps emotional, basis, ie on a
basis logically unconnected with the issues in the case.
Thus evidence that appeals to the fact-finder's sympathies,
arouses a sense of horror, provokes an instinct to punish,
or triggers other mainsprings of human action may cause
the fact-finder to base his decision on something other
than the established propositions in the case. Similarly, on
hearing the evidence the fact-finder may be satisfied with a
lower degree of probability than would otherwise be
required.
McHugh J in Papakosmas at [91]
Evidence is not unfairly prejudicial merely
because it makes it more likely that the defendant
will be convicted. In R v BD [(1997) 94 A Crim R
131 at 139 Hunt CJ at CL pointed out:
The prejudice to which each of the sections
[ss 135, 136 and 137] refers is not that the
evidence merely tends to establish the Crown
case; it means prejudice which is unfair because
there is a real risk that the evidence will be
misused by the jury in some unfair way’
• This approach was applied in Ainsworth v
Burden [2005] NSWCA 174 at [99].
R v Lisoff [1999] NSWCCA 364
• DNA evidence excluded by TJ
• On a crown appeal….
R v Lisoff [1999] NSWCCA 364 at [60]
In our opinion, by applying to the statutory
formula,—“the danger of unfair prejudice”,—a
test of mere possibility, his Honour erred in law.
Section 137 requires a real risk of unfair prejudice
to the defendant by reason of the admission of the
evidence complained of. It is not sufficient to
establish that the complexity or nature of the
evidence was such that it created the mere
possibility that the jury could act in a particular
way. His Honour applied the wrong test.
R v Dann [2000] NSWCCA 185
- Appellant argued for the exclusion of
medical evidence under s 137
- Unattractive nature of the subject matter
was not itself prejudicial
Is the inability to cross examine
unfair prejudice?
• See Ordukaya v Hicks [2000] NSWCA
– Lack of xx would bear on the weight
given to the document.
Note Ainsworth v Burden at [105]
Section 138 - Exclusion of improperly
or illegally obtained evidence
• Section 138(1), which applies both in criminal and
civil cases, provides that evidence that was
obtained improperly or in contravention of an
Australian law, or in consequence of an
impropriety or of a contravention of an Australian
law, is not to be admitted unless the desirability of
admitting the evidence outweighs the
undesirability of admitting evidence that has been
obtained in the way in which the evidence was
obtained.
• discretion to admit otherwise inadmissible
evidence, not to exclude otherwise
admissible evidence
The balancing exercise required
• In Bunning v Cross (1978) 141 CLR 54, the High
Court indicated that a court must weigh competing
requirements of public policy: "the desirable goal
of bringing to conviction the wrongdoer" on the
one hand and, on the other, the avoidance of "the
undesirable effect of curial approval, or even
encouragement, being given to the unlawful
conduct of those whose task it is to enforce the
law" (at 74 per Stephen and Aickin JJ).
• Section 138(3) sets out various nonexhaustive factors which the court is to take
into account in exercising its discretion
under s 138(1).
Cases
• Ridgeway v The Queen (1995) 184 CLR 19
• Robinson v Woolworths [2005] NSWCCA
426
• DPP v Marijancevic; DPP v Preece; DPP v
Preece [2011] VSCA 355
• Look at section 90 when do admissions.