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PART A: COMPLETE NOTES (CTH) Checklist!
Step 1 • Onus of proof & Burden of proof.
Step 2 • Is it Relevant?
Step 3
• Is it admissible?
• That is, do any rules of evidence apply making it inadmissible?
Step 4
• Inadmissible: hearsay
• Exceptions: non-hearsay purpose, common law, statutory exceptions
Step 5
• Inadmissible: opinions
• Exceptions: lay opinions, experts
Step 6
• Inadmissible: witnesses protected by privilege
• Exceptions: waiver
Step 7
• Inadmissible: similar fact evidence.
• Exception: is it relevent?
Step 8
• Missing a key witness?
• Hostile witness if called? Jones v Dunkel if not called?
Step 9 • Do any presumptions apply?
Step 10
• Are the witnesses competent and compellable?
• If yes = subpoena; If no = unsworn evidence or no testimony.
Step 11 • Credability: finality rule; prior inconsistent/consistent statements.
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RELEVANCE AND ADMISSIBILITY
• Relevance is the ‘first hoop’ of admissibility.
• If the evidence does not help the court to draw an inference about a disputed fact, the evidence is not relevant and thus not admissible.
Relevance
Step 1: What are the facts in issue?
• For each piece of evidence ask:
- Is the evidence irrelevant; or
- ‘Does this piece of evidence affect the possibility of a fact in issue being either proved or disproved?’
•
Step 2: Common law
1. Definition
• At common law relevance has never been authoritatively defined, since it has always been regarded as a matter of ‘logic and general variance’.
• ‘Any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself, or in connection with other facts, proves or renders probable the past, present, or future existence or nonexistence of the other’.
- Digest of Law of Evidence 1887.
• ‘The most acceptable test of relevancy is the question, does the evidence render the desired inference more probable than it would be without the evidence?’
- McCormick on Evidence 1972.
Commonwealth reflects the Common Law
• However, s 55(1) EA 1995 (Cth) states that an item of evidence is relevant in a case if it is
- ‘evidence that, it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the preceding’.
- The High Court acknowledged that while s 55 did not apply in WA, ‘the definition [under s 55] reflects the common law’.
➢ BBH v R (2012).
2. Logical relevance
• Does the evidence show some logical connection to a fact in issue?
- For example:
➢ A tendency to show proximity;
➢ Shows the nature of a relationship (Wilson);
➢ Shows a connecting link.
• Something that is logically relevant, but may not always be helpful to a court.
General rule
• If a piece of evidence seems to be logically relevant:
- To prove or disprove a fact in issue;
- It is prima facie admissible;
- Unless it is otherwise excluded.
• Evidence will lack relevance if it is ‘equivocal’
in terms of what it tends to show.
- That is, it could not rationally affect, one way or another, the suggestion that the accused was behaving in an inappropriate sexual manner towards his daughter.
➢ BBH v R (2012).
1. Legal relevance
• Legal relevance means something is helpful to the court.
• Is it admissible or excluded by a legal rule?
- For example:
➢ Hearsay;
➢ More prejudicial than probative;
➢ Etc.
2. Types of Relevance Direct Relevance
• An item of evidence is directly relevant when it renders the fact in issue more or less likely.
- For example:
➢ Seeing the face of the robber and recognising him as a friend.
3 Indirect Relevance
• When evidence does not go directly to a fact in issue but instead affects the probative (weight of proof) value of other evidence.
- For example:
➢ The witness who saw the robber, has poor eyesight.
➢ This evidence does not go to the central fact in issue: did the person rob the petrol station?
➢ However, it is indirectly relevant to how much ‘weight’ to give the evidence.
▪ I.e. it goes towards other evidence of credibility.
Relevance and Circumstantial Evidence
• Circumstantial relevance:
- When there is no direct evidence;
- The sum of indirect evidence;
- When viewed in its totality;
- Provides strong evidence to prove the fact in issue.
3. Relevance cases
Hollingham v Head (1858) (dog poo case)
• “Does the fact of a person having once or many times in his life done a particular act in a particular way make it more probable that he has done the same thing in the same way on another and different occasion?”
R v Stephenson [1976] (nobody knew who was driving case)
• Facts:
- A car with four occupants was involved in an accident, three died and one was so badly injured he did not remember who was driving.
- The other party to the matter wanted to call evidence that one of the four had been affected by alcohol. That evidence was refused.
• Law:
- There was no evidence that the car was being driven badly.
- Just because one person was drunk, it does not mean the driver was.
R v Buchanan [1966] (I can drink a lot and not be affected case)
• Facts:
- The accused was convicted of
manslaughter after being involved in a collision.
- He had drunk many beers before the accident.
- Before the accident, someone saw him driving erratically.
• Law:
- How he drove half an hour before and accident is not relevant to how you drove at the time of the accident.
- Yet, while it may not be directly relevant to how he was driving at the time of the accident.
- It may be indirectly relevant to his credibility.
Wilson v The Queen (1970) HCA (bumpy tractor case)
• Facts:
- A shot gun went off and killed the man’s wife. He said it was a bump that did it; the prosecution said it was murder. There were no witnesses.
- Evidence was led from people who said that the woman had told them she feared he would kill her for her money.
• Issue:
- The appeal was based on that evidence not being relevant to the fact in issue, which was ‘did the gun go off accidently or not?’
• Law:
- Irrelevant: whether the gun went off accidently, or not?
- Relevant: whether the wife feared that her husband would kill her.
➢ ‘If the evidence does tend to explain the occurrence…Or to assist in the choice between the two explanations of the occurrence…On general principles, because it is relevant it is admissible…It is not all evidence of the relationship of the parties that is admissible, but only that from which a relevant inference may be
logically and reasonably drawn…’
- Relationship evidence will usually be relevant.
➢ For example: relevant to motive.
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Step 3: Statute (Cth)
s 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.
s 56: Relevant Evidence is 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.
s 135: General Discretion to Exclude Evidence
• A way to exclude possibly relevant 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.
Admissibility
Step 1: Basic rule
• Evidence will be admissible if:
1. It is relevant;
2. It is not excluded by common law or statute;
3. It is not excluded by the judge’s discretionary power.
Step 2: Exclusionary rules
• An item of evidence, even though relevant to one of the facts in issue in a case, may still be rendered inadmissible if it falls foul of one of the many exclusionary rules of evidence that exist at common law.
• There are three main groups of evidence that are inadmissible:
1. Exclusion on the ground of unreliability.
➢ E.g. hearsay evidence and opinion evidence.
2. Exclusion on the ground of tendency to mislead.
➢ The issue here is whether the ‘logical probity’ (that is, the degree of
relevance and weight) of the evidence is outweighed by its ‘prejudicial effect’.
➢ E.g. similar fact evidence.
3. Exclusion on the ground of public policy.
➢ E.g. privilege and exclusion of evidence obtained illegally or unfairly.
Step 3: Flowchart
Is the information
relevant? Does this hearsay rule
apply to it?
Does the opinion rule apply to it?
Does the information contravene the rule
relating to prior judgements and
convictions?
Do either the tendency rule or the coincidence
rule apply to it?
Does the credibility rule apply to it?
Does the information contravene the rules relating to identification
evidence?
Is the information covered by a privilege?
Should the judge exercise the general judicial discretion to exclude it?
Only information able to answer 'no' to each of these questions will be
deemed admissible as evidence.
