Topic 1: Relevance
s 56 EVIDENCE ACT
s 56 Evidence Act
s 56
(1) except as otherwise provided by the Act, evidence that is relevant in a proceeding is admissible in the proceedings 56
(2) evidence that is not relevant in the proceeding is not admissibles 55 EVIDENCE ACT
s 55 Evidence Act
s 55(1)
“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”Fact in Issue:
- facts in issue are determined by reference to: (1) the substantive law (prescribes the elements of offence/claim/defence) and (2) how the parties put their case”
- evidence sought to be adduced must be capable of assisting the tribunal of fact in deciding, one way or the other, whether a fact in issue has been proven.
- identify which particular element the evidence is tied to - facts in issue which are in dispute, that are contentious.
Presumption of Acceptance:
- presumption that once the evidence is admitted embraced by the jury of fact Rationally Affect:
- low threshold test, question asked is simply whether a rational or reasonable juror be influenced
- not to assess the strength of the evidence or its reliability in terms of its effect on the probability of the existence/non-existence of a fact in issue – if the evidence appears even remotely relevant the Judge must accept.
(Directly or Indirectly)
- directly relevant evidence is evidence which, if accepted, tends to prove/disprove a fact in issue directly.
- direct evidence includes: oral evidence of witness’s sensory
perceptions of facts in issue, documentary evidence depicting facts in issue (e.g. Photographs and Video depicting a robbery), admissions made by the defendant.
- indirectly relevant evidence requires the tribunal of fact to engage in extended reasoning processes to decide whether the existence of the fact in issue is made more or less probable by the evidence
- circumstantial evidence is evidence of facts which provide a logical basis for inferring that a fact in issue is more/less likely to have occurred - creditability evidence; purpose demonstrating that a witness, and facts deposed by that witness, should or not be believed
- tendency evidence: evidence adduced for purpose of showing that a person has had a particular tendency in the past and, therefore, is more/less likely to have behaved in the way no alleged
- coincidence evidence: evidence adduced for the purpose of showing that, because of the improbability of two or more events occurring, a person did a particular act or had a particular state of mind on the occasion as now alleged
- failure to adduce evidence: what facts may be inferred from a party’s silence, or failure to adduce evidence that could assist their case, in the fact of allegations made by the other side.
s 55(2)
in particular, evidence is not taken to be irrelevant only because it relates to: (a) the credibility of a witness; or (b) the admissibility of other evidence; or (c) a failure to adduce evidence Irrelevant EvidenceStephen
: irrelevant evidence is taken to indicate that “its weight is sominimal that is does not serve to add or detract from the probability of the principal issue being established… insufficiently relevant or too remotely relevant.” Note: unclear whether s 55 has had the effect of abolishing the principal in Stephenson.
Smith
: Evidence of the Police was irrelevant because -(1) the witness’s assertion of identity was founded on material no different from the material available to the jury from its own observation
(2) 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;
(3) 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 at that conclusion
(4) indeed, if the assessment of probability is affected by that knowledge, it is not be any process of reasoning, but by the decision maker permitting substitution of the view of another, for the decision-maker’s own conclusion.
Circumstantial Evidence
-if there is an alternative hypothesis which explains the facts, consistent with the accused’s innocence?
-
s 61 Jury Directions Act:
each of the elements must be proven beyond reasonable doubt, having regard to all the evidence represented.
Plomp v R
: all circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged.there may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise prove to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case.
Plomp
citingMartin v Osborne:
facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inferenceif the accused is to be blamed, the evidentiary circumstances must bear no other reasonable explanation.
this means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is to high that the contrary cannot reasonably be supposed.
the circumstances which may be taken into account in this process of reasoning include all facts and matters which form constituent parts or ingredients of the transaction itself or explain or make intelligible the course of conduct pursued.
- e.g. jury weighed all the circumstances they might reasonably conclude that it would put an incredible strain on human experience if Plomp's evident desire to get rid of his wife at that particular juncture, presaged as it was by his talk and actions, were fulfilled by her completely fortuitous death although a good swimmer and in circumstances which ought not to have involved any danger to her.
