Final Doc Notes

Relevance

Section 56(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 is not admissible

Section 55(1) EA: 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

1. What is the fact in issue?

   • In a civil matter – facts necessary to be proved for an action to be made out

   • In a criminal matter – facts the prosecution must prove to establish guilt/defence

2. What is the evidence?

   • It may be necessary to identify the type of evidence – direct or circumstantial

     • Direct evidence: Where the only inference drawn by the court is as to the accuracy of its own sensations or those of the witness Example

       1. Observable evidence

     • Circumstantial evidence is that which, even if proved, does not prove the existence of the fact in issue unless an inference is drawn

       1. Circumstantial evidence is permitted, and acts cumulatively Example

       2. Generally used when the particular event is basically unobservable e.g. intention to kill or if there are no witnesses who saw the actual act

       3. Not every piece of circumstantial evidence must be proved beyond reasonable doubt. It is sufficient that on the whole of the evidence there is no reasonable explanation consistent with innocence (for a criminal case) R v Shepherd; Plomb v R

          1. Jury need only understand that they must entertain doubt where any other inference consistent with innocence is reasonably open on the evidence

          1. However, some intermediate steps in the reasoning process may be so crucial that the jury should not convict unless satisfied of their existence BRD R v Shepherd

             1. Only if the evidence consists of links in a chain rather than strands in a cable

3. Assess whether the evidence could rationally affect the assessment of the probability of the existence of that fact

   • What does “rationally affect” mean?

     • An objective test. Does the evidence offered render the desired inference more probably than it would be without the evidence? McCormick (you assume that the assertion is true) Papkosmas v The Queen

       1. Must be some common sense connection between it and the fact we are inquiring into

       2. Test of relevance doesn’t require exclusion of the possibility of something else occurring. The inferential fact need only be one of the possibilities for the circumstantial evidence to become relevant Plomb v R

     • Evidence must provide more information to the jury than that available to them already R v Smith

     • If the logical connection between a fact and the issue is so slight that the fact is too remote, then it is insufficiently relevant (it does not add to or detract from the probability of the existence of a fact) R v Stephenson

     • Can it be relied upon to raise a reasonable doubt? R v Stephenson

     • The strength of the probative value is not considered at this stage; all evidence of probative value can be admitted, even if it is circumstantial or has circular reasoning BBH v R

4. Evidence is not taken to be irrelevant only because it relates only to s55(2)

   • The credibility of a witness; or

   • The admissibility of other evidence; or

   • A failure to adduced evidence

5. Exclusions

   • Section 135: A court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might –

     1. Be unfairly prejudicial to a party; or

     2. Be misleading or confusing; or

     3. Cause or result in undue waste of time

   • Section 136: A court may limit the use of evidence if there is a danger that a particular use of the evidence might

     1. Be unfairly prejudicial to a party

     2. Be misleading or confusing

   • Section 137: In a criminal proceedings, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant

     • Mandatory

     • Applies only to the prosecutor in criminal cases

Competence and Compellability

• A competent witness – can be lawfully called to give evidence i.e. allowed to give evidence. Concerned about the ability of the witness to function as a witness

• A compellable witness – can be obliged to give evidence i.e. required to give evidence

• A witness is presumed to be competent. Generally if you are competent, you are compellable s12

Competency

• Are they competent? Yes/No

  • Except as otherwise provided by the Act, every person is competent to give evidence s 12(a) EA

  • A person is not competent to give evidence about if fact, if, for any reason 13(1)

    1. They do not have the capacity to understand a question about the fact; or

       • Remember interpreters can be used to help them understand and to adequately reply s 30

       • If the person is deaf or mute the court can give directions so that they can satisfy these sections s 31

    2. Do not have the capacity to give an understandable answer about the fact

  • However just because they are not competent to give evidence about one fact does not necessarily mean they are not competent to give evidence about another fact s 13(2) EA

  • It is presumed, for the purposes of s 13, that the person is competent. The burden of proof is on the party arguing they are not s 13(6)

  • The court may inform itself as it thinks fit, including by obtaining information from a person who has relevant specialised knowledge (based on their training, study or experience) s 13(8)

  • Evidence that has been given by a witness does not become inadmissible because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence s 13(7)

• If they ARE competent, can they give sworn evidence?

  • Unsworn Evidence: A person who is competent to give evidence is NOT competent to give sworn evidence about the fact if they do not have a capacity to understand that, in giving evidence, they are under an obligation to give truthful evidence s 13(3)

    • Do they have the capacity to understand that they...

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