Relevance and discretionary
exclusion
• Adducing evidence
– Chapter 2
• 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)
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.
(2) 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
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.
this
Relevant to a “fact in issue”
• In civil proceedings?
• In criminal proceedings?
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".
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)
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.
Evans v R (20070
• 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?
Admission and use of evidence
• Multiple relevance of evidence –
example of complaint evidence in Papakosmas
v The Queen
• Complainant said “I was raped”
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)
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.
(2)
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) 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.
(2) 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” – [59- 60]
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.
Dupas [2012] VSCA
• The Trial Judge should have taken into account
the reliability of identification evidence under
s 137.
• The TJ held that the reliability of the evidence
was a matter of weight not admissibility.
• Question: Should the Court follow Shamouil?
Crown case
• Identification evidence
–
–
–
–
•
•
•
•
•
Mrs Burman
Mr Weller
Mrs Melnik
Mrs Baran
Lies
Admissions to cellmate (Mr Fraser)
Clothing found at home
Forensic evidence
Evidence of opportunity
Defence case
• Who was Dr Kemp?
• What was his evidence?
• How was it admissible?
Decision
• Summary at [63]
• ALRC report at [65]
• NSW is wrong – why? [68]
Categories of evidence where there
was application of discretionary
exclusion
• Identification evidence
Why was this type of evidence unreliable?
Why did judge use discretion to exclude?
* Confessions and admissions
• Accomplice evidence
• Expert evidence
• Tendency and coincidence
•
•
•
•
What did the court hold?
How should the statute be read? [164]
What does [181] say? [184]?
What do they say about NSW’s methodology?
[206]
• What do they conclude? [226]
• Did the trial judge correctly apply s 137?
NSW responds
• R v XY [2013] NSWCCA 121
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). – not excluded under s 137
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]
La Trobe Capital & Mortgage Corporation
Limited v Hay Property Consultants Pty Ltd
(2011) 190 FCR 299
[64] It is true that the meaning of the term “unfair prejudice” has
been somewhat contentious. The ALRC explained the risk of
unfair prejudice as being the danger that the evidence might be
used in an improper, perhaps emotional, way: ALRC, Evidence
(Interim) Report, Report no 26 (1985), v 1, [644]. Clearly, a risk of
that kind is much greater in the context of jury trials. However,
there are also numerous authorities that suggest that an unfair
prejudice may arise from procedural considerations: see Odgers,
Uniform Evidence Law (9th ed, 2010) [1.3.14560].
Cure prejudice with a direction
• R v Clark [2001] NSWCCA 494
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 non-exhaustive
factors which the court is to take into account
in exercising its discretion under s 138(1).
Cases
• Robinson v Woolworths [2005] NSWCCA 426