1. LAWS13010 Evidence and Proof Topic 2 – The Paramount Rules: Relevance and Admissibility

2. Learning Objectives At the end of this topic, you should be able to: Explain the meaning of “relevance” in Evidence Law and how it is applied in proceedings; Describe those forms of Evidence which need not satisfy the Relevance test; Describe how the rules of Admissibility apply as an exclusionary test; Explain the judicial discretion to exclude evidence in criminal trials; Outline, in general terms, the purpose and rules of a voir dire.

3. Review and context

4. Where the relevance rule fits Is the evidence relevant? Is the evidence caught by some rule of exclusion? Should the court exclude the evidence in its discretion? If admissible, what weight should the court put on the evidence?

5. What is relevance?

6. So what does “Relevance” mean? Evidence is relevant where: alone, or in conjunction with other facts; and having regard to the common course of events; it tends to prove; a fact in issue. Re Van Beelen (1974) 9 SASR 163, 193

7. Relevance: Uniform Evidence Act Section 56: Relevant evidence is admissible unless otherwise excluded; evidence not relevant is inadmissible. Section 55: Evidence is relevant “if could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”

8. The Relevance Rule What is relevant is to be received and weighed, unless some special rule demands that it should be excluded. What is not relevant is to be rejected. Re Van Beelen

9. The rationale for the relevance rule

10. Rationale for the relevance rule Keep everyone focussed on the important issues Avoid distractions with potential to prejudice Economy: conserve resources of the court and the parties

11. What are the limits of relevance?

12. “Because the witness's assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness's assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury of the question [of identity].” Per Gleeson CJ, Gaudron, Gummow, Hayne JJ at (2001) 206 CLR 650 at 655. Smith v The Queen

13. “Although logic is the test of relevance, not all evidence which is logically relevant is also admissible. The logical connection between a fact and the issue to be determined may be so slight that the fact is treated as too remote and evidence of it as inadmissible. In some cases, such evidence is described as being irrelevant… Such evidence may be more correctly described as insufficiently relevant or too remotely relevant.” [1976] VR 376 at 379-380. R v Stephenson

14. Relevance is not a fixed concept – it can only be expressed in general terms as “a relationship which exists between two facts.” (Field, para 1.14) Compare the facts of R v Buchanan [1966] VR 9 and R v Horvath [1972] VR 533: context is everything when determining whether a fact is relevant Relevance is a relative concept

15. How high is the bar? To be admissible, evidence need not be persuasive or compelling. Unpersuasive evidence is still evidence – so the bar is quite low! However there remains a point at which the logical connection is so tenuous that it is not regarded as relevant at law. R v Stephenson

16. Indirect or Circumstantial Relevance Indirect, or circumstantial relevance, does not directly tend to show that a fact in issue is more or less likely; it may assist the court to assess other evidence. Example: Evidence relating to an ongoing relationship with a child, where only one incident is charged. See HML v The Queen (2008) 235 CLR 334

17. When can a court make a finding of fact without evidence?

18. Prescribed Evidence Some evidence is prescribed by statute. In these cases, Relevance is not considered. Example: Transport Operations (Road Use Management) Act 1995 s.124(1)(e) relating to proof of ownership of a motor vehicle.

19. Presumptions Sometimes, the law makes presumptions of fact. These facts don't need to be proved by evidence at all. Example: Succession Act 1981: Presumption as to Survivorship.

20. Judicial Notice Some facts are so notorious that they are indisputable and need not be proven. The test is whether “every ordinary person may reasonably be presumed to be aware of it.” Holland v Jones Example: Cats are kept as domestic pets. Nye v Niblett I personally guarantee this is the stupidest picture you will see on a powerpoint slide this semester. But I just couldn't resist.

21. Fitting this into the bigger picture of evidence law

22. Admissibility Not all relevant information is suitable to be considered by the court. Our law already, and for good reason, undoubtedly excludes evidence of many matters which anyone in his own daily affairs of moments would regard as important in coming to a decision. R v Bond

23. An Exclusionary Process The rules of evidence exist to exclude evidence which is relevant but which is, for one reason or another, unsafe for use in a trial. They do not include or endorse forms of evidence, which would be the other logical approach.

24. Rationale for exclusion Because the evidence is inherently unreliable Because the evidence would be likely to mislead rather than inform Because public policy demands that the evidence be excluded

25. Judicial discretion in criminal cases

26. Judicial discretion Judges have an inherent duty (and power) to run a fair trial, resulting in a just outcome. This duty is particularly strong in criminal cases. During the 20 th century in particular, judges have used that discretionary power to exclude evidence which did not fall foul of any admissibility rule, yet which would still tend to reduce the fairness of a trial. In the Uniform Evidence Act jurisdictions, the judicial discretions now have statutory expression.

27. Judicial discretion : Unfair Prejudice Evidence is prejudicial if it might lead the jury to form unfair views about the accused person's guilt. The classic example is an accused person who has been convicted of similar crimes in the past. In exercising this discretion, the Judge should consider whether the probative value of the evidence outweighs its prejudicial effect R v Swaffield (1998) 192 CLR 159 Pfennig v R (1995) 182 CLR 461

28. Judicial discretion : Unfair Evidence A judge has a discretion to exclude evidence if, in all the circumstances, its use would be unfair to the accused. This discretion is often called into play in relation to confessions given in police custody. McDermott v R Cleland v R

29. Discretion : Evidence Obtained Unlawfully What would the world be like if unlawfully obtained evidence was admissible? If authorities could commit offences to obtain evidence, knowing it is unlikely they could ever be prosecuted? A discretion exists to exclude evidence which is the direct or indirect result of illegality or impropriety. But always remember: it is a Discretion! Nothing is automatic! Bunning v Cross

30. Admissibility Rules Under Attack? RULES OF EVIDENCE DO NOT APPLY!

31. The voir dire

32. Voir Dire In a trial, the Judge decides whether evidence is admissible, and then the jury decides how much weight they will give to each piece of evidence. What if the judge, in order to determine whether certain evidence is admissible, has to actually hear that evidence? If that happens, isn't the damage already done? A voir dire is a “trial within a trial” to determine whether evidence is admissible or not. Doe d Jenkins et al v Davies et al

33. Voir Dire – Exclusion of the Jury It is not mandatory to exclude the jury from a voir dire, however it is usually a very good idea. For this reason they are often undertaken before the jury is even empanelled. If for instance, a judge reviews evidence during a voir dire with the jury present and excludes it for being unduly prejudicial, isn't the damage already done? Demirok v R

34. Voir Dire – What Standard of Proof? The burden of proof and the standard of proof switches from issue to issue during a voir dire. In some cases, the burden will be on the party tendering the evidence; in other cases, it will be on the party challenging the evidence. Depending on circumstances, the criminal, civil, or evidential standards or proof may apply. For this course, all you need know is that there is no simple rule.

35. Review In this topic, you have learned: the central role of relevance in the law of evidence; the forms of evidence where the relevance test does not apply; the role of the exclusionary rules of admissibility the three forms of judicial discretion to exclude evidence; and the basic form and functions of the voir dire.