1 RELEVANCE
Is the evidence admissible?
[Evidence] is admissible if it is relevant to the proceeding: s 56(1). Otherwise, inadmissible: s 56(2). Questions on admissibility are determined on the balance of probabilities: s 142.
Is the evidence relevant?
A. Section 55 EA.
[Evidence] is relevant if (were it were accepted) it would rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: s 55(1). It is relevant in the [direct/indirect] sense.
• A minimal logical connection is sufficient (ALRC Report 26, Vol 1 para 641)
• 'Evidence must be taken at its highest': thus Qs of credibility of the W are not material for relevance unless W is so unreliable/lacking in credibility that it would not possibly rationally affect the assessment of existence of fact in issue: IMM
• Examples
o Tendency evidence to prove a tendency for sexual interest for victim, where subject of proceedings was sexual abuse = relevant: BBH
o Circumstantial evidence that if in broader context, evidence in question could give D a motive for alleged crime = relevant: Plomp
o Cf. 2 POs could identify D in security footage when jury could already make their own assessment on the same material = not relevant Smith v R
B. Per s 55(2), evidence is not taken to be irrelevant just because it relates only to:
• (a) W's credibility;
• (b) admissibility of other Ev; or
• (c) a failure to adduce Ev.
Types of relevance
• Direct relevance: tends to conclusively prove/disprove a fact in issue; only inference drawn is as to the accuracy of its own/witness' sensations
• Indirect relevance: requires jurors to engage in extended reasoning processes to draw an inference whether existence of facts in issue is made more/less probable by the evidence Circumstantial evidence:
• Test per Plomp per Dixon CJ:
o The evidence does not prove the fact in issue unless the jury draws an inference; for a fact in issue to be successfully proved by circumstantial evidence, the evidence must 'bear no other reasonable explanation' than the inculpation of the accused
Discretions to exclude (applies to many topics)
[OP] may argue that the Court ought to exercise its discretion to find that [E] should be excluded per:
• General discretion to exclude evidence
o s 135: Ct may refuse to admit ev if its probative value is substantially outweighed by the danger that ev might be (a) unfairly prejudicial or (b) be misleading/confusing or (c) cause/result in undue waste of time.
• General discretion to limit evidence
o s 136: Ct may limit use of ev if danger that particular use of the ev might: (a) unfairly prejudice a party or (b) be misleading/confusing
• Exclusion of prejudicial evidence in criminal proceedings
o s 137: In criminal proceedings, Ct must refuse to admit evidence adduced by the P if its probative value is outweighed by the danger of unfair prejudice to the defendant.
Does it prejudicially affect the trial?
Minimum probative value
• D's guilt (for careless driving) depended on the movements of the victim's fiat. Thus, evidence that occupants of fiat were intoxicated was not sufficiently relevant since it in itself does not prove if the fiat moved differently as it was too speculative as to who was driving in fiat: Stephenson
• Fact someone else has reached a conclusion about the identify of the D è not even logically relevant Smith v R
Excessive prejudicial effect
• Evidence that D had previously abducted and sexually abused a 12 year old boy could not be relevant evidence against D in relation to the murder charge: it has an excessively prejudicial effect on the mind of the jury 'over and above' than expected, had consideration of it been confined to its probative force: Pfennig v R (Mason CJ, Deane & Dawson JJ)
o I.e. jury's ability to reason will be subsumed by visceral reaction
o Or maybe jury will fail to give adequate weight to alternative explanations for evidence
• Prejudicial –– case might be damaged in some unacceptable way by provoking some emotional response by the jury: McRae
Reliability Warnings
s 32 JDA: P or D counsel may request that TJ direct jury on [Ev] of a kind that may be unreliable.
s 31 JDA: Evidence of a kind that may be unreliable includes:
• (a) Hearsay and admissions;
• (b) Evidence the reliability of which may be affected by age, ill health (physical or mental), injury or the like;
• (c) Evidence by a witness who might reasonably be supposed to have been criminally concerned in the events;
• (d) Prison informers;
• (e) Secret tape recordings
