Relevance
Evidence is relevant if it is logically probative or disprobative of some matter which requires proof. DPP v Kilbourne – Lord Simon
- evidence is probative of something If it tends to show that thing to be true - evidence is disprobative of something if it tends to show that thing to be false - relevance should be thought of in terms of logical connection, not weight Section 55 is the main section in the EA regarding relevance.
Section 56: evidence that is relevant in a proceeding is admissible unless otherwise provided.
Evidence ‘directly’ relevant: when the evidence itself is connected to the probable existence or non-existence of a fact in issue itself.
- ‘direct evidence is evidence which, if accepted, tends to prove a fact in issue’
(Gleeson CJ in Festa v The Queen)
Evidence ‘indirectly’ relevant: when the evidence is connected to the probable existence or non-existence of a fact in issue not of itself but through other evidence.
Cases on relevance at common law
R v Buchanan (connecting link between evidence and fact in issue)
- Facts: Accused charged with manslaughter arising out of a collision. The accused admitted that he had consumed a large quantity of alcohol during the course of the day of the collision. Evidence was given by 2 witnesses, Mr & Mrs Lewis, that about 30-40min before the accident occurred the car driven by the accused was traveling at a very high speed & on the wrong side of the road. The accused was convicted &
appealed.
- Accused said that driving on wrong side was an isolated event & nothing in connection to driving at time of accident.
- Held: Properly admitted as relevant. Judge rejected saying there was evidence accused was drunk when driving the car & this relates to that. It shows the extent to which the alcohol had affected him.
- Winneke J: There was a ‘connecting link’ between the evidence & the issue, namely the fact that accused was affected by alcohol. Fact that he admitted to this, or it was common ground he had consumed large quantity of alcohol, gave the evidence a lot of relevance. It made the desired inference (accused driving with culpable neg at time of accident) more probable without the evidence.
Horvath v R (driving case in contrast to Buchanan)
- Facts: Accused was charged with causing death by culpable driving. At his trial evidence was admitted that a witness, B, had seen him overtaking other cars when approaching a bend on the road & also when approaching the crest of a hill. The driving described by the witness took place 45min and 48km before the accident.
Accident occurred when accused car moved gradually onto the wrong side of the road for no apparent reason & collided with an oncoming car. Accused may have fallen asleep. Was convicted & appealed.
- Held: Here no link like in Buchanan. Failure on one occasion doesn’t prove failure on another. At time of accident he went on wrong side for no apparent reason. Witness statement indicated it was for a reason (i.e. overtaking).
- Winneke, Little & Stephen J: The earlier driving failed to provide any basis for an inference that the accused was in the same earlier state as he was at the time he drove on wrong side of road for no discernable reason. Basically, evidence failed this threshold.
R v Stephenson: (car case where relevance was too slight)
- Facts: Accused was convicted on three counts of culpable driving causing death and one count of causing GBH by driving a car negligently, the charges arising out of an intersection collision between a car driven by the accused & another. Accused wanted to get blood tests of all deceased in other cars because wanted to see if they were affected by drugs/alcohol but didn’t know who was driving at the time. Judge didn’t allow so appealed, saying no indication that car was driven negligently (as accused ran a red light at high speed).
- Held: The logical connection between fact & the issue to be determined may be so slight that the fact is treated as too remote and evidence of it as inadmissible. Here the logical relevance of the sobriety of the deceased is so slight that evidence of it is inadmissible on the ground of remoteness. The connection of the condition of the driver of the Fiat to whether Stephenson was guilty of the charge was extremely tenuous & the logical relevance of the condition of possible drivers of the Fiat to whether Stephenson was guilty of the charge could be regarded as so slight that it became inadmissible on the ground of remoteness.
Hollingham v Head: (limited relevance)
- Facts: Plaintiff was a seller of fake poo in English markets. He sold poo to def & there was an argument whether the contract of sale was subject to a quality condition. The def sought to lead evidence that contracts for sale of poo made on other occasions with other persons had contained such a condition.
- Held: Evidence inadmissible. While of some relevance, the probative value of such other contracts was extremely low & would have opened up inquiries as to all other contracts entered into by the plaint. Such inquires would have been time consuming, confusing to the jury and of only very limited relevance to the issue before the court.
- Willes J: Defined relevance in terms of tendency of evidence to render the existence of a disputed fact more or less probable that would otherwise be the case if the evidence where not adduced. Also consider saving time of the court and preventing the minds of the jury being prejudiced and distracted from the point in issue.
Relevance under EA: the fact finder must be able to draw an inference from the evidence to a fact in issue in the proceeding that makes the existence of the fact in issue more or less probable than it would be without that piece of evidence.
Smith v The Queen: High court decision
- D was accused of taking part in a bank robbery, he alleged he was the lookout. D argued this police opinion was irrelevant. It was deemed relevant but was appealed.
- ‘the process of reasoning from one fact (the depiction of a man in the security
photographs) taken with another fact (the observed appearance of the accused) to the conclusion (that one is the depiction of the other) is neither assisted, nor hindered, by knowing that some other person has or has not, arrived that that conclusion.’
(Gleeson, Gaudron, Gummow, Hayne) R v Marsh:
- Similar to Smith case, dealt with the relevance of identification of an appellant from whom photographs were taken
- In this case, the appellant’s sister saw one of the photographs of a bank robbery published in a local newspaper and notified the police that she recognised the appellant. At trial this evidence was ruled to be admissible and on appeal this was affirmed
- This was distinguished from the Smith case because Ms Wood had grown up with her brother and had an ongoing association with him making it more relevant than the identification by the police officers in the Smith case
Palmer v R: creditability evidence will always be relevant IMM v R: leading case on probative value
It can be seen that:
- A necessary (but not sufficient) condition of the admissibility of a piece of evidence is that it is ‘relevant in a proceeding’ (s 56(1) and (2)); and
- A piece of evidence is ‘relevant in a proceeding’ if it 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’ (s 55(1))
S 55(1) says ‘could rationally affect’ which the ALRC have said requires only a ‘minimal logical connection between the evidence and the fact in issue’. It was enough ‘if it only makes the fact in issue more probable or less probable than it would be without the evidence’.
In Papakosmas v The Queen, McHugh said that ‘reliability is not the concern of relevance, a concept that is concerned with logic and experience.’
In Festa v The Queen, Gleeson CJ said ‘if evidence is of some, albeit slight, probative value, then it is admissible unless some principle of exclusion comes into play to justify withholding it from the jury’s consideration.
In R v Chanthovixay, Hulme said ‘possibility of such a connection between a price of evidence and a fact in issue in the proceeding is sufficient for a finding of relevance.’
Regarding prejudicial effect:
- In Radi v The Queen the appellant argued that the trial judge had erred in admitting evidence that a box of bullets was found in the appellant’s car. P contended that the bullets were often used in handguns and sought the inference between handguns and the supply of drugs and that the use of firearms formed on the of ‘indicia of drug supply’. Following the HC ruling in Thomson and Wran v R, such evidence should only be admitted if there was ‘some link with the actual offence charged’.
Consequently, the appellant argued the bullets was only relevant to stablishing
‘propensity on the part of the appellant to engage in criminal conduct and should have been excluded’. However, appellant court held that the bullets had ben correctly admitted because ‘possession of bullets that may be used in a handgun in
circumstances in which it is alleges that the person has a future purpose of supplying the drugs is clearly in the category of an indicium of supply’
- However, in Swan v The Queen, P alleged that the appellant wasn’t paying attention to the road because he was fatigued, and this fatigue was caused or contributed by his having ingested the drug heroin in the period leading up to the accident, although he was not alleged to be influenced by the drug at the relevant time. The Victorian court
of appeal held the evidence of the appellants drug use could not rationally affect the probability of the appellant’s driving being detrimentally affected at the time of the accident. Accordingly, there was no evidence connected with the culpability of the appellant for the death of the deceased and therefore the use of the evidence resulted in a substantial miscarriage of justice and the appeal was allowed.
Where there is an objection to the receipt of evidence on the basis of its lack of relevance, the trial judge might:
- Reject the evidence presented on the ground that it is not relevant - Admit the evidence as relevant
- Admit the evidence ‘provisionally’ (s 57(1)(b)) Multiple relevancy
The common law principle is that evidence relevant to proof of some fact in issue on more than one basis, but not admissible as proof of fact on at least one of those bases, is to be admitted and used only for the admissible purpose.
In Bull v The Queen, McHugh, Gummow and Hayne, said ‘evidence which is relevant and legally admissible on one issue may often be logically but not legally relevant to some other issue in the trial, but that does not make the evidence inadmissible on the first issue’.
On occasions, the evidence might be excluded under s 135, or in a criminal matter, under s 137 if the trial judge is persuaded that the admission of the evidence, albeit for the purpose for which it is legally admissible, might be unfairly prejudicial to a party.