ADMISSIBILITY OF EVIDENCE
Is it relevant? (s55, 56)
Relevant evidence has probative value to affect (directly/indirectly) the assessment of the probability of FiI (factual element of the charged offence and any defence)
1. For each piece of evidence articulate what the evidence is, how it is relevant, who is using it and why
How is it relevant?
A. Direct evidence
o Witnesses testifying that he or she perceived one or more facts which constitute elements of offence – they actually perceived events at issue in the proceedings o Video footage of the events occurring
o If the evidence is accepted would it establish one or more of the facts in issue without the need for any further inferences?
B. Circumstantial evidence (if its relevance is dependent on other evidence go to 4) o Adduced by means of witnesses’ testifying about their perceptions, but unlike
direct evidence, circumstantial evidence is always inconclusive no matter how credibility its source
E.g. Evidence provided regarding what the accused often wore, the knife, copy of the newspaper article at his house coinciding with the victim’s ID of offender not conclusive but increases the probability that the defendant was guilty because it places the accused in limited category of persons sharing attributes with the actual offender (McCarthy and Ryan (1993))
o Do the perceived facts render more or less probable the occurrence of those alleged events?
C. Credibility evidence
o Has no direct bearing on the facts in issue, but has a bearing on the probative value or credibility of evidence
o Fact in issue may be affected indirectly through either bolstering or undermining the credibility of a witness
o Relevant on the basis that anything which affects the probability that a witness is telling the truth affects the probability of the existence of the facts to which they are testifying
Who is using it and why? What’s the Prosecutor/Defence’s strategic rationale?
Options for a judge
Admit
Admit and give warnings or direction per ss95, 116, 136, or 165, 165A, 165B o Might be risks with the evidence, might be unreliable
Admit but limit its use, s136 o Directions to jury
Exclude, ss135, 137 (PV outweighed by unfair prejudice, caught by an exclusionary rule) o Burden on party trying to exclude evidence to raise s135
o Burden on defence to raise s137
o Is it incriminatory or exculpatory evidence for the accused?
E.g. Crown wants to use CCTV footage evidence because it places the accused at the scene
o If evidence has dual relevance/multiple uses, identify how evidence can be relevant to each use
Papakosmas: complaints of sexual assault and witness testimonies could have two uses, can be relevant to
- proving facts asserted by the complainant (that she was raped:
HEARSAY USE), maker available and facts were fresh in memory so exception under s66(2)(b) available to admit the evidence - supporting CREDIBILITY of the complainant, that she is to be
believed (logical connection is that she complained immediately, three times, consistent in her complaint, and was very upset)
2. Is its probative value contestable? Will it assist the jury in determining FiI? (If this is not at issue, move on to 3)
Question of could it rationally affect (directly or indirectly) the assessment of the probability of a FiI has a low threshold – at the stage of admissibility, court is only concerned with potential probative value of the evidence, and does not take into account questions of credibility, reliability, or weight of evidence (actual probative value)
o Scope of inquiry is broad, relevant if it may have ANY weight on a fact in issue o Enough that the evidence could make the FiI more probable or less probable
than it would be without the evidence
o Very low threshold – not about showing causal connection, sufficient to show any rational/logical connection (R v Neal; Smith v The Queen)
o Must not impose an overly stringent threshold because actual probative value to be assigned to the evidence is in the province of the jury, and cannot be
determined until all of the evidence of the trial is complete
E.g. If the Fil is whether the person in the shown in the footage the accused, consider the quality of the CCTV footage, whether witness evidence identifying accused in the footage would assist jury
o R v Smith (2001): Bank robbery case. FiI was whether person in photo was the accused. Admissibility issue was whether the evidence given by the two police officers saying that he was was relevant.
Could their evidence if accepted by the jury rationally affect (directly or indirectly) the assessment of the probability that the accused was present in the bank during the robbery?
Majority held evidence irrelevant due to logical disconnect between the police officer’s evidence and the jury’s task, police in no better position than jury to decide whether or not Smith was person in photo
Countervailing argument can note Kirby J’s dissent in Smith, and use Palmer: Smith is distinguishable where the police have personal knowledge of features that would not be apparent to the jury such as change of appearance
o Evans v R (2007): Another bank robbery case. Issue was whether the
prosecutor’s request that the defendant dress in the recovered balaclava and
overalls and the prosecutor’s sunglasses, parade in front of the jury saying words attributed to the robber and then sit in the clothes was relevant evidence
Majority (Kirby J, Heydon J, Crennan J) held demonstration to be relevant (low threshold) – indirectly relevant to showing it could be him because resemblance can help jury draw a relevant comparison to prove identity of the accused, can exculpate and inculpate therefore definitely bears logical/rational connection to the FiI but may be excluded if prejudicial/humiliating/unfair
Minority (Gummow J and Hayne JJ) found the evidence of the
demonstration to be irrelevant, “the central issue was whether he was the robber…there is no dispute that there had been a robbery. There was no dispute that the robber had been wearing a balaclava, overalls and sunglasses…Deciding who had worn the disguise was not assisted by having the appellant put on the items he was asked to put
3. Relevant evidence is admissible (s56) subject to exclusionary and discretionary rules
If not able to rationally determine a fact in issue it is irrelevant, inadmissible, no need to consider other exclusionary rules
4. FOR CIRCUMSTANTIAL EVIDENCE:
A. If its relevance is dependent on other evidence, it could be admitted provisionally o Under s57 if the fact is relevant ONLY in combination with another fact (e.g.
evidence of a knife being actual murder weapon only relevant if later accepted that victim’s fatal wound consistent with use of that weapon)
Enables provisional relevance of evidence dependent on later evidence being adduced
If later evidence is not adduced then earlier evidence will become retrospectively inadmissible
o Under s58(1) when dealing with copies of relevant original (must first accept that copy is what is claims to be), or machine produced evidence (must first accept that machine is accurate/reliable)
Court may examine it, and may draw any reasonable inference from it, including inference as to its authenticity or identity
o Under s58(2) if evidence is of an act furthering conspiracy (must first accept that there is a conspiracy)
Court can infer existence of conspiracy form acts alleged to be in furtherance of the conspiracy
Acts alleged can be provisionally relevant – court need not actually find conspiracy as prerequisite for the acts being relevant
B. If it is relationship or background evidence, it must have specific relevance o To reveal the relationship between protagonists (Clark (2001))
o To reveal a person’s state of mind (Conway (2000))
o To show that the incident in question was part of a connected series of events which should be considered as one transaction (O’Leary (1946))
C. Is the entire case is determined by circumstantial evidence?
o Where the jury is asked to rely solely on circumstantial evidence, guilt should not only be a rational inference, but it should be the ONLY rational inference from the circumstances (Shepherd)
If evidence is relevant for multiple purposes, is there danger that a particular use of the evidence might be unfairly prejudicial, misleading or confusing? (s136)
Judge required to direct jury that evidence could be used for one of the purposes, but not for the purpose which may be prejudicial/misleading/confusing
General discretion to limit the use of evidence likely to be used when s60 or s70 is utilised, where evidence for non-hearsay or non-opinion purpose is rendered admissible for the other admissible purpose
Does a discretionary exclusion apply? (ss135, 137, 101)
Relevant and admissible evidence is always subject to discretionary exclusions in ss135, 137, and 101 (for credibility evidence) if there is a risk that the jury might misuse the evidence in some way/give it more weight than it deserves (Em (2003))
Depends on if the evidence has sufficient PV in order to outweigh other problems with the evidence – sufficiency is a weighing exercise
o High PV, balanced with problems, may still be admitted
o Low PV, problems may outweigh this, thus evidence likely to be excluded
Weighing process in assessment of probative value
o Evidence is to be considered on the assumption that it is accepted by the jury o Judge must not assess issues of credibility and reliability in the determination of
PV, to do so would be to attempt to anticipate the weight the jury would attach to it (Shamouil; Mundine)
Authorities favour a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value
It is the jury, and NOT the trial judge’s task to give evidence particular weight (R v Burton (2013))
o If there is a real risk that the admission of such [tendency] evidence may prejudice the fair trial of the criminal charge before the court, the interests of justice require the trial judge to make a value judgement not a mathematical calculation (Pfennig)
Trial judge has discretion to exclude otherwise admissible evidence that would operate unfairly against the accused
A. If PV is substantially outweighed by the danger that evidence might be unfairly
prejudicial/misleading/confusing/cause undue waste of time – general discretion to exclude evidence (s135)
Consider the probative value of the evidence: the degree to which it goes to the specific FiI, what is it relevant to? Does the evidence have a high PV to this FiI?
o Judge cannot trespass on the function of the jury, cannot consider the reliability or credibility of the evidence in assessing PV (Shamouil; Mundine)
o Although technically relevant, consider what weight the jury, acting rationally, could give to the evidence, and whether it is likely to give them any real assistance
Consider the risk that evidence will be misunderstood or misused in some unfair way (R v RD)
o Might the jury use the evidence to make a decision on an improper and emotive, rather than rational, basis? In a way logically unconnected to the issues in the case?
o Arousing a sense of horror, provoking instinct to punish? (McHugh in Papakosmas)
o E.g. photographic evidence of gruesome crimes where victim is present
Will be substantially outweighed by this danger if the trial judge determines that sufficient warning/direction about evidence will not overcome the possibility that jury will be misled or confused by evidence
o Evidence will be excluded with a view to promoting accurate fact finding
Or if it is deemed time wasting evidence that would unnecessarily proliferate the issues that the jury would have to resolve
o Requires an assessment of the time that would be unduly wasted by the evidence
o Evidence may be excluded to ensure legal proceedings are not unnecessarily lengthened by the admission of evidence that is unlikely to give tribunal of fact any real assistance
B. If PV of evidence adduced by the prosecution is outweighed by danger of unfair prejudice to the accused - must exclude evidence (s137) *only used by defence*
Consider probative value of the evidence: the degree to which it goes to a FiI, what is it relevant to? (XY (2013))
o What role would that piece of evidence, if accepted, play in the resolution of a disputed fact in issue? (Mundine)
Consider element of unfair prejudice: is it minimal, or is it such to as to outweigh the PV?
Will be outweighed by unfair prejudice if it cannot be cured by proper directions/warning
o Real risk that jury may misunderstand or misuse the evidence in an irrational way (emotive, logically unconnected)
o Does the risk exist notwithstanding judicial directions/warnings which it should be assumed the Court will give?
Examples of evidence that may be excluded under s137 o Gruesome crime scene photos
But may be properly admitted if these photos have high PV for e.g.
showing the direction of the flow of blood, relevant to the question if the deceased was murdered or committed suicide (R v Amnes) o Demonstrations requiring the accused to dress in overalls, balaclava and
sunglasses for jury to compare appearance to the robber on security camera (Kirby J in Evans)
o Evidence suggesting guilt by association e.g. the accused visited another person charged in relation to the same offences in prison (R v Chami)
