Admissibility of evidence - Relevance
• With respect to the reception of evidence, the first question is always whether the evidence is relevant
• Once a document is relevant it is prima facie admissible. Then you go through the rest of the Evidence Act to see if the evidence is excluded by one of the exclusionary rules.
Evidence Act ss 55-58
Section 55 – Relevant Evidence
(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) Evidence is not to be taken to be irrelevant 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
Note: “fact in issue in the proceedings” means the facts necessary to establish the defence or claim in the proceedings (look to the pleadings in a civil case or the charge in a criminal trial)
Definitions
Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.
Credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given , is giving or is to give evidence.
Papakosmos v The Queen (1999)
Note: There need only be a ‘minimal logical connection’ between the evidence and a fact in issue. Legal relevance incorporates consideration of matters such as procedural fairness, case management considerations and reliability.
Facts: Issue was whether the recent complaint that ‘P raped me’, made to Ms Ovadia, Ms Stephens and Ms Fahey, almost immediately after the time C said the rape occurred, was relevant and admissible for two purposes: its hearsay purpose (to prove P raped C) and its non-hearsay purpose (as a prior consistent statement that supported the credibility of C as a witness).
Held:
Gleeson CJ and Hayne J
The evidence of the witnesses Stephens, Fahey and Ovadia as to what the complainant said to them was relevant.
The evidence, if accepted, could rationally affect the assessment of the probability of a fact in issue in the proceedings, the fact being that the complainant did not consent to have intercourse with the appellant.
In the circumstances of the present 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 no consent to intercourse.
Gaudron J and Kirby J
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 the probability of the occurrence of those events and, thus, were admissible as evidence of the facts asserted in them. (supports C’s credibility)
McHugh J
It is difficult to see why complaint evidence is not also “relevant” to the issues of consent and intercourse. In almost every conceivable instance of sexual assault, evidence that the victim had complained about the assault at the first reasonable opportunity, would “rationally affect…the assessment of the probability of the existence” of intercourse having taken place and of a lack of consent to that intercourse having been given.
Smith v R [2001] (HCA)
Facts: Appellant convicted of robbery and caught on bank security cameras. Fact in issue was whether the person sitting in the trial was the person in the photos tendered as evidence. Two police officers gave evidence, having had prior dealings with S, that they recognised S in the photographs.
Held: Evidence rejected as irrelevant.
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.
Kirby J (dissent): the evidence was indirectly relevant as police had seen the accused in various guises, in daylight, and from various angles, and were in a better position to assess if he was the person in the photos. Don’t want to set the hurdle of relevance to high. However, this evidence was excluded as hearsay.
Note: The case may be different if the police officer was at the scene of the crime.
Section 56: Relevant evidence to be admissible
(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
Section 57 – Provisional Relevance
(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
(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.
• E.g. where the relevance of fact A depends on the court finding that fact B exists, the court does not have to be satisfied that fact B exists before it can receive evidence of fact A. The court can receive evidence of fact A if the court believes that there is or will be sufficient material before it to suggest that fact B may exist.
Section 58 – Inferences as to relevance
(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